Chuck B.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Oct 14, 2016

0120142941 (E.E.O.C. Oct. 14, 2016)

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

Chuck B.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.

Appeal No. 0120142941

Agency No. FINCEN-13-0600-F

DECISION

Complainant filed an appeal from the Agency’s July 17, 2014, 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 no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Regulatory Compliance Specialist (also known as Deputy Assistant Director), GS-15, at the
Agency’s Financial Crimes Enforcement Network (FinCEN), in Vienna, Virginia.

The Agency advertised for the position of Section Chief, Non-Bank Financial Institutions
Section, GS-1801-15, from May 7, 2013, to May 14, 2013, under Vacancy Announcement
Number FINCEN/13-171809RORG. The position description noted the incumbent supervises
a sizeable staff in conducting enforcement and compliance activities related to the non-banking
financial institutions. Duties included serving as a key advisor to the Director, Office of
Compliance and Enforcement on the formulation, planning, development, and implementation
of compliance and enforcement strategies related to Non-Bank Financial Institutions that have

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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industry-wide, national, and/or international impact and also representing FinCEN in internal
and on occasion interagency meetings involving the coordination of examinations,
investigations, and enforcement actions involving Non-Bank Financial Institutions.

Complainant was one of the applicants who applied for the position of Section Chief, Non-
Bank Financial Institutions Section. Complainant and the other applicants were initially
interviewed by a three-member panel. Panel 1 members included the Associate Director of the
Regulatory Policy and Programs Division (Associate Director), the Deputy Director in the
Office of the Director (Deputy Director), and the Chief of the Liaison Division (Chief).
Following the initial interviews, Panel 1 members came to a consensus on which applicants
would be recommended for advancement. Complainant was not one of the applicants
recommended for further consideration.

The applicants who advanced were then interviewed by a second panel. Panel 2 members
included the Deputy Director and the Director. Following the second interview process, the
Selectee was chosen.

On July 7, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him. The Agency defined Complainant’s complaint as alleging Complainant was
subjected to discrimination on the bases of sex (male) and age (59) when:

On May 30, 2013, Complainant was not selected to the position of Section Chief, Non-
Bank Financial Institutions Section, GS-1801-15, as advertised in Vacancy
Announcement Number FINCEN/13-171809RORG.

During the investigation of the accepted claim, the Agency sent Complainant a request for a
declaration in support of his complaint. Complainant did not provide a declaration for the
investigation. The record contains an electronic mail message Complainant sent in response to
the investigator’s request for his declaration in which he stated that due to his accepting a job
at a bank and retiring from the federal government, two of his requested remedies had become
irrelevant (being transferred to another division and being given a title conveying seniority and
status). Complainant explained that he chose not to file a withdrawal of his complaint because
that could be interpreted as him changing his mind with regard to whether he was
discriminated against by the Agency. Complainant stated he still believed he was the victim of
discrimination, so he chose not to respond and for this “matter to be closed under the operation
of law which requires a response from [him] within 15 days.” The EEO Specialist and Case
Manager at the Agency Complaint Center responded to Complainant’s electronic mail message
and explained that barring a settlement or an official withdrawal from Complainant, the
investigative process would continue. Thereafter, the investigation was completed without
Complainant’s declaration and the Agency issued a final decision on July 17, 2014.

In its final decision, the Agency stated that because Complainant chose not to provide a
declaration statement, the decision would use the testimony Complainant provided through his
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formal complaint attachment and from the report of counseling. The Agency determined that
Complainant established a prima facie case of age and sex discrimination.

The Agency noted that two of the three first round interview panel members provided
nondiscriminatory reasons for their decision to advance the Selectee over Complainant. The
Associate Director explained that Complainant did not demonstrate sufficient “outward
engagement,” and there was a concern about his ability to “engage effectively with others.”
The Agency noted that the Deputy Director provided four reasons that the Selectee was
advanced over Complainant: (1) the Selectee demonstrated greater emotional intelligence; (2)
the Selectee demonstrated greater investigatory experience and knowledge with regard to
nondepository institutions; (3) Complainant’s interview responses were terse and cursory,
indicating a lack of interest in the position; and (4) Complainant was unable to provide timely
information regarding his office’s workload, which the Deputy Director discovered included a
significant backlog of untimely matters.

The Agency recognized that Complainant challenged the Associate Director’s assertion that he
lacked sufficient “outward engagement” by providing examples of his extensive and high
profile speaking experience. Complainant’s 2012 performance appraisal alone provided
sufficient evidence to show that Complainant has “excellent communications skills.” The
Agency found, however, in light of the Deputy Director’s unchallenged statement that
Complainant seemed to lack “emotional intelligence” and interest in the job (illustrated by
Complainant’s terse interview responses), it appears that the Associate Director was referring
more to emotional intelligence than to professional speaking skills. The Agency acknowledged
that Complainant developed evidence to demonstrate the latter, but did not present evidence to
specifically demonstrate the former. The Agency noted the Deputy Director provided four
additional reasons why management did not advance Complainant, none of which Complainant
nor the record refuted. The Agency determined that given there was no evidence to discredit
the Deputy Director’s reasons, the reasons must be credited as true.

The Agency further determined Complainant failed to present sufficient evidence to
demonstrate that his qualifications were so plainly superior to the Selectee’s so as to indicate
mixed motives on the part of management. The Agency acknowledged that the Selectee had
less seniority than Complainant, weaker performance evaluations than him, and scored lower
on her application questionnaire. However, the Agency noted that management has the right to
choose how much relative weight to give to the various factors when the employment action is
not squarely one of seniority. The Agency recognized that the Selectee received the same
“Outstanding” rating on her 2012 performance appraisal as Complainant, even if
Complainant’s overall score was somewhat higher. The Agency found that Complainant’s
argument that he held a management position similar to the one at issue, whereas the Selectee
did not, is counter-balanced by the unchallenged evidence that the Selectee had greater
knowledge and expertise than Complainant with regard to the specific context of the job:
nondepository institutions. The Agency noted the position was for Section Chief of the Non-
Bank Financial Institutions Section. The Agency also noted that Complainant’s statement
regarding his excellent communication skills is counter-balanced by conclusive evidence that
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the Selectee also had “outstanding” written oral communication skills. The Agency concluded
Complainant failed to present sufficient evidence to show that he was clearly better qualified
for the position.

The Agency noted that Complainant’s anecdotal evidence regarding comments made by the
Director of wanting to hire “younger” people was not corroborated, nor was it indicative of
bias on the part of the interview panel members who chose not to advance Complainant, which
did not include the Director. The Agency stated that Complainant’s argument that once the
new female Director and female head of his Division came on board, the only two managers
hired were both female is insufficient, without more, to show a bias on the part of the decision-
makers for the position at issue. The Agency stated that two hires cannot prove a
discriminatory bias; especially when it is not clear if the same decision-makers were involved
in both selections. The Agency concluded Complainant failed to show that his qualifications
were plainly superior to the Selectee’s or to otherwise show that management was likely
motivated by a discriminatory bias against him based on his age or sex in deciding not to
advance him to the second round interviews or to select him for the Section Chief position.

On appeal, Complainant admits that failing to provide a declaration was harmful to his case.
Complainant explains at the time his declaration was due, he was in transition moving to a new
home and job and he chose not to prepare a statement. Complainant for the first time on
appeal cites faults with the investigation that was conducted. Specifically, Complainant states
that his complaint might have been commingled with another complaint since the deposition of
Person C indicates he was asked about the color and national origin of his co-members on the
interview panel. Complainant notes that his complaint did not allege color or national origin
and such questioning would not be relevant to his complaint. Complainant also notes that one
of the questions asked to Person C referred to Complainant as “her” when he is a male.

In addition, Complainant notes the position at issue was only posted for one week.
Complainant claims that management did not seek to gather a pool of qualified candidates, but
rather already knew who they wanted in the position. Complainant claims that the Director
wanted to put the Selectee into the position because of her preference for younger, female
employees.

Complainant notes that when the position at issue closed and the applicants were scored, he
was the top applicant and the Selectee scored 5th out of 7 applicants. Complainant states that
he has served on selection and interviewing panels over his eight years at the Agency and says
it is uncommon for the Agency to interview the fifth-placing applicant from a hiring certificate.

Complainant also notes that at the time he was informed he was not selected for the position at
issue, he had also applied for other positions. Complainant notes a few days after the
nonselection at issue, he was told that he was not selected for any of the other positions for
which he applied. Complainant states that the Non-Bank Financial Institutions Section Chief
position was the only position filled at that time, so he did not bring a complaint with regard to
other positions for which he was not selected.
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In addition, Complainant claims that he was already performing the duties of the position-
managing eight staff for the task of analyzing cases of noncompliance with the Bank Secrecy
Act at the GS-15 level while the Selectee was a non-managerial project officer at the GS-14
level. Complainant also notes that in his most recent performance evaluations, he was rated
“Outstanding” with a perfect score of 400. Complainant notes that the Selectee was rated
“Outstanding” with a score of 355 and was evaluated as a non-managing Project Officer.
Complainant also states that if the investigators looked back beyond the most recent rating
period, they would find that Complainant’s performance was always rated “Outstanding” while
the Selectee’s performance was not.

Complainant also challenges the conclusion that the Selectee had greater knowledge than he did
with regard to non-depository institutions. Complainant states that in the Associate Director’s
notes, the Selectee indicated that it had been a challenge at the Agency because she had no
experience with regard to non-bank financial institutions and she had to start from scratch.
Complainant states that he had overseen the processing of hundreds of cases of non-bank
financial institutions beginning in 2005 until the time of the Agency reorganization.

Additionally, Complainant claims that the management depositions contained false statements.
Complainant notes that the Deputy Director’s statement that Complainant was unable to
provide information with regard to workload was false. Complainant claimed he repeatedly
provided Person X with case information at the time he was overseeing case processing on an
interim basis.

Complainant also responds to the Associate Director’s comments about his failure to engage.
Specifically, he notes that the Associate Director rated his communication skills as
“outstanding” and even when the Associate Director was not the reviewing official, he still
reviewed all evaluations within the division. Complainant stated that each year his
performance was rated as “outstanding.” Complainant claimed the statement regarding his
failure to engage was false because he was selected for various assignments that would not
have been given to someone who failed to engage. Specifically, Complainant noted that he
was asked to testify in three criminal trails and was also asked to fill a second Deputy Assistant
Director position.

Finally, Complainant claims there are witnesses to the Director’s comments favoring
“younger, smarter” employees that should be interviewed to validate her bias for younger
employees. Complainant names staff in attendance at those meetings who could testify as to
the Director’s comments.

In response to Complainant’s appeal, the Agency cites Complainant’s failure to cooperate in
the investigative process. The Agency notes that in its final decision, it correctly concluded
that Complainant failed to prove that he was subjected to discrimination.

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The Agency notes Complainant’s appeal statement contains many of the same arguments
already considered and addressed in its final decision. The Agency argues that to the extent
Complainant is now offering additional evidence, for the first time on appeal, in an effort to
rebut the Agency’s legitimate, nondiscriminatory reasons for his nonselection, such
information should be excluded or, in the alternative, considered in favor of the Agency
because Complainant failed to provide this information, without good cause, when he was
required to do so during the investigation.

The Agency notes it articulated legitimate, nondiscriminatory reasons for not selecting
Complainant. The Agency recognizes it is Complainant’s burden to show pretext. The
Agency argues that the record does not reflect that Complainant’s qualifications for the position
were “plainly superior” to those of the Selectee. The Agency states that Complainant did not
offer any evidence during the investigative process to rebut the Agency’s assertions. The
Agency asserts that allowing Complainant to enter rebuttal arguments for the first time on
appeal and for which he has no compelling reason for not providing during the investigation,
would be unfair and prejudicial to the Agency and belittling to the integrity of the EEO
investigative process. Thus, the Agency argues that Complainant’s appeal statement, to the
extent it includes arguments not asserted during the formal investigative process, should be
excluded by the Commission.

Moreover, the Agency states that even if the Commission were to consider Complainant’s new
evidence, his mere assertions that management’s declarations were “false” is insufficient to
demonstrate pretext. The Agency argues that Complainant’s disagreement with management’s
assessment of his qualifications does not establish pretext. The Agency claims Complainant
has failed to show that its reasons for hiring the Selectee was pretextual, in that he has not
shown by a preponderance of the evidence that his qualifications were “plainly superior” to
those of the Selectee or that the Agency harbored discriminatory animus towards him.

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”).

At the outset, we note Complainant does not challenge the definition of the accepted issue in
his complaint. Additionally, we find that the record in the present case was adequately
developed. The record reveals and Complainant admits that he was provided the opportunity
to submit a declaration in support of his case during the investigation of his complaint but
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chose not to do so. Moreover, we note the Agency advised Complainant of the consequences
of failing to provide a declaration during the investigation of his complaint.

With regard to Complainant’s contention on appeal that his case might have been commingled
with the case of another employee, we find the record does not support this contention.
However, we note that even if his case was commingled with another employee’s complaint,
there was no evidence that the investigation of Complainant’s case was harmed by such an
action. We find that the investigation was adequately conducted and that if Complainant had
evidence that he wished the Agency to examine, including particular witnesses, the appropriate
time to do so was before or during the investigation, but not for the first time on appeal.

In the present case, we find that the Agency articulated legitimate, nondiscriminatory reasons
for not advancing Complainant to the second round of interviews. Specifically, the Associate
Director explained that Complainant did not demonstrate sufficient “outward engagement,”
and there was a concern about his ability to “engage effectively with others.” Additionally,
the Deputy Director stated the Selectee was advanced over Complainant because the Selectee
demonstrated greater emotional intelligence; the Selectee demonstrated greater investigatory
experience and knowledge with regard to non-depository institutions; Complainant’s interview
responses were terse and cursory, indicating a lack of interest in the position; and Complainant
was unable to provide timely information regarding his office’s workload, which the Deputy
Director discovered included a significant backlog of untimely matters.

With regard to Complainant’s contention that the vacancy was only posted for one week, we
note Complainant presented no evidence that posting the vacancy for one week was unusual or
done for discriminatory reasons. We also find no evidence that the fact that the Deputy
Director asked all the interview questions constituted evidence of discrimination. Additionally,
with regard to his contention that the Selectee was preselected, we note other than his assertion
Complainant produces no evidence to support his assertion. Moreover, we note that pre-
selection itself does not constitute prohibited discrimination.

The record reveals that the Selectee scored 92.36 on the application questionnaire while
Complainant received a score of 99.36. Despite his contentions to the contrary, there is no
evidence that the Agency acted improperly by interviewing all the candidates who were
determined to be qualified for the position based on their initial application questionnaires.

In an attempt to show that that the Associate Director’s assertion that he lacked sufficient
“outward engagement” was false, Complainant provided examples of his extensive and high
profile speaking experience while working at the Agency. The record reveals Complainant’s
2012 performance appraisal reflected that Complainant had “excellent communications skills.”
However, we note that in his declaration, the Associate Director explained that “[t]hrough the
interview and through past experience, [Complainant] had not demonstrated a style of outward
engagement with staff and others that was deemed important for the new position.” Further,
we note that in an interview during EEO Counseling, the Associate Director stated that
Complainant was “more the type of person that one has to pull things out of rather than
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someone who will initiate discussions -- whether it is with those above him, below him or at
the same level.” The Associate Director stated that “[g]iven the desire to have more proactive
enforcement at FinCEN and greater engagement on enforcement issues, this was an area in
which [Complainant’s] style was not consistent with what FinCEN was looking for.” Thus,
we find the Associate Director was referring to concerns with Complainant’s engagement with
staff, rather than his extensive speaking experience, which was unrebutted by Complainant.

Additionally, we note that the Deputy Director stated that the Selectee demonstrated greater
investigatory experience and knowledge with regard to non-depository institutions.
Complainant contends this was false. The record reveals that the position at issue was for
Section Chief of the Non-Bank Financial Institutions Section (emphasis added). A review of
the record reveals that both on the Selectee’s resume and during the interview process, she
discussed her experience with regard to non-depository institutions. Complainant does not cite
any evidence in the record showing that during the application process he demonstrated similar
experience with regard to non-depository institutions. Specifically, we note that in his
declaration, the Deputy Director stated that the Selectee was a subject matter expert in non-
depository institutions and had private sector experience generally with bank and non-bank
financial institutions and had participated, and in some cases led teams, in the internal
investigation of depository and non-depository institutions relating to their compliance
obligations. Further, the Deputy Director noted that the Selectee also had public sector
experience examining and investigating BSA (Bank Secrecy Act) violations by non-depository
institutions and had led a major investigation relating to BSA violations by non-depository
institutions. In contrast, the Deputy Director stated that Complainant’s prior experience
related mostly to bank financial institutions and he did not have significant investigative
experience with non-depository institutions. Upon review, we find Complainant failed to show
that the Agency’s articulated reason for referring the Selectee over Complainant, that the
Selectee had greater knowledge and expertise than Complainant with regard to non-depository
institutions, was false.

With regard to Complainant’s claim that the Director made comments that she wanted to hire
“younger” people, we note Complainant’s contention was uncorroborated. Additionally, we
find that even if the Director made such comments, the Director was not a part of the initial
interview panel that chose not to advance Complainant to the second round of interviews.
Moreover, there is no evidence indicating that the Director had any involvement or influence
in which applicants were forwarded to the second round of interviews.

In the present case, we find Complainant failed to prove by a preponderance of evidence that
he was subjected to unlawful discrimination when he was not selected for the position of
Section Chief, Non-Bank Financial Institutions Section. Specifically, we find the Agency
articulated legitimate, nondiscriminatory reasons for not referring Complainant to the second
round of interviews. Upon review, we find Complainant failed to show that the Agency’s
articulated reasons were a pretext for discrimination. Moreover, we find Complainant failed to
present sufficient evidence to show that he was plainly better qualified for the position.

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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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”
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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

October 14, 2016
Date