Complainant,v.Timothy G. Massad, Chairman, Commodity Futures Trading Commission, Agency.

Equal Employment Opportunity Commission

May 7, 2015

01-2013-3288-0500 (E.E.O.C. May. 7, 2015)

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

,
Complainant,

v.

Timothy G. Massad,
Chairman,
Commodity Futures Trading Commission,
Agency.

Appeal No. 0120133288

Agency No. CFTC-EEO-FY13-01

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated August 22,
2013, finding no discrimination with regard to his complaint alleging employment
discrimination in violation of 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. For the following reasons, we AFFIRM
the Agency’s final decision finding no discrimination.

BACKGROUND
In his complaint, filed on December 13, 2012, Complainant, an applicant for employment at
the Agency, alleged discrimination based on age (over 40) and disability (Agent Orange related
diabetes) when on September 17, 2012, he learned that he was not selected for the position of
Attorney-Advisor, CT-0905-13/14 (Vacancy Announcement Number (VAN) 12-033). After
completion of the investigation of the complaint, Complainant did not request a hearing. The
Agency thus issued its final decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut.

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. (November 9, 1999) (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
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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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period at issue, Complainant, an
applicant for employment at the Agency, was employed as an Attorney-at-Law with the Illinois
Secretary of State, where he litigated securities violations and fraud. The Agency indicated
that its Human Resources Branch received 227 applications, including Complainant’s
application for the position at issue, an Attorney-Advisor, CT-0905-13/14, under VAN 12-
033, which was opened on April 3, 2012, with closing date of April 17, 2012. This position,
however, stated the Agency, was closed without a selection.

Specifically, the Recommending Official (RO), Associate Director for Clearing Policy Branch
in the Agency’s Division of Clearing & Risk (DCR), for the position at issue stated that VAN
12-033 was for one senior level attorney position which would report directly to her and would
be located either in Washington, D.C. or Chicago. The RO stated that she reviewed all the
applications which were maintained in an electronic mailbox and specifically looked for
applicants who had work experience with the Agency, Securities & Exchange Commission
(SEC), or Derivatives Clearing Organization (DCO) and who had knowledge about the
clearing derivatives. After review of the applications, the RO referred about 20 – 25
applications to the Selecting Official (SO) for the position. The RO, concurred by the SO,
stated that although she did not recall Complainant’s application specifically, Complainant’s
application would not have been referred to the SO because he had no experience working with
the Agency, SEC, or DCO; his experience was limited to enforcement litigation with State;
and he did not have specific derivatives regulatory experience. The SO stated that she
reviewed the applications referred to her by the RO and selected five candidates to be
interviewed. The SO indicated that even if Complainant’s application was referred to her by
the RO, she would not have selected Complainant to be interviewed due to the lack of
experience for the position. After the interviews, the SO indicated that she picked one
candidate as the top choice because the candidate had worked at a DCO and on its registration
application to the Agency and the candidate also had an impressive writing sample. The SO
stated that the top candidate, however, did not have a sufficient number of years experience to
qualify for the CT-13/14 pay level, and thus, she decided to close VAN 12-033 without
making a selection.

The SO noted that she re-posted the Attorney-Advisor position as a CT-11/12 under VAN 12-
046, which was opened on May 25, 2012, with closing date of June 8, 2012. The SO
indicated that she selected the top candidate (the same person who was the top candidate in the
cancelled selection), along with one other candidate, who both applied for VAN 12-046.
Complainant did not apply for this lower graded position. We note that this lower graded
selection is not a live issue in this case. It is noted that we do not address in this decision
whether Complainant is a qualified individual with a disability. Based on the foregoing, we
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find that Complainant failed to show that the Agency’s action was motivated by discrimination
as he alleged.

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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”
means the national organization, and not the local office, facility or department in which you
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
May 7, 2015