Derrick P.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Aug 16, 2016

0120142405 (E.E.O.C. Aug. 16, 2016)

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

Derrick P.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.

Appeal No. 0120142405

Agency No. MINT-13-0430-F

DECISION

On June 19, 2014, Complainant filed an appeal from the Agency’s May 19, 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. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for the
position of WG-7, Metal Forming Machine Operator (Coin Manufacturer) at the Agency’s
Philadelphia facility. The Coin Production Manager at the Philadelphia facility was the
Selecting Official for the position at issue.

The Agency posted Vacancy Announcement 13-USMINT-095-P from March 4, through March
9, 2013, indicating there were 24 openings for the position of WG-7 Metal Forming Machine
Operator. Complainant applied for the position in question through USAJOBS. On March 12,
2013, Complainant was notified that he was not selected for the position. Ten applicants were
ultimately hired under the relevant vacancy announcement for the position of WG-7 Metal
Forming Machine Operator.

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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On August 6, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him in reprisal for prior protected EEO activity when:

On March 12, 2013, he was not selected for a WG-7, Metal Forming Machine
Operator position advertised under Vacancy Announcement Number 13-USMINT-
095P.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

In its final decision, the Agency explained it had a contract with the Administrative Resource
Center (ARC), Bureau of Fiscal Service (BFS)2 to perform certain Human Resource
(HR)/administrative duties including preparing and posting vacancy announcements, reviewing
the applications, determining which applicants are qualified for the vacancies, compiling a
Certificate of Eligible Candidates (Certificate) based on their determination, and forwarding
the Certificate to the selecting official.

The Agency noted HR Specialist 1, BFS, Office of Accounting and Shared Services, in
Parkersburg, West Virginia was the Specialist assigned to the vacancy at issue. The Agency
noted HR Specialist 1 validated the job analysis to ensure compliance with Office of Personnel
Management (OPM) directives, created the job announcement and posted it on USAJOBS.gov,
determined the minimum qualifications of all eligible applicants by comparing the experience
in the resume to what they claimed on the online questions, issued the Certificate, and initiated
the hiring process for all selections.

The Agency noted that HR Specialist 1 stated that the Metal Forming Operator, WG-7, was a
temporary position and a wage grade (WG) position, which meant the applicants were rated by
the Career Connector system in accordance with OPM direction. HR Specialist 1 stated that a
list of job analysis questions were used to screen candidates based on a predetermined rating
process. HR Specialist 1 explained that the questions were loaded into the system with
weighted answers and applicants who did not satisfy the minimum score of “2” on the screen-
out and across all elements were not reviewed; the system would automatically change their
status to ineligible and the Specialist would change their custom status to NQSS (not qualified
self-screen out).

2 The Agency noted that although the Selecting Official refers to the Bureau of Public Debt
(BPD), in October 2013 BPD merged with another agency to become the Bureau of the Fiscal
Service (BFS). Thus, the Agency used the updated name in its decision.
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The Agency noted HR Specialist 1 determined the Best Qualified List (BQL) and issued two
Certificates for this Announcement because more candidates were needed than those included
in the first Certificate. HR Specialist 1 stated that Complainant screened himself out because
he failed to meet the minimum score of “2” and thus, he could not legally be referred for
consideration. The Agency noted the record showed Complainant’s scores on the five
elements for the screen-out questions. The Agency noted Complainant received a passing
score of “2” or higher on all but one element: element 5, “Ability to provide Production
Support Se[rvice],” on which he scored a “1” due to earning 16 out of 44 points on that
element.

The Agency noted the Selecting Official received and considered only the names and
applications of those applicants included on the Certificate of Eligible Candidates (Certificate).
The Agency explained that because Complainant was not presented on the Certificate, the
Selecting Official did not review his application or consider him for selection, nor was he even
aware that Complainant applied.

The Agency determined Complainant did not establish a prima facie case of reprisal. The
Agency noted that Complainant previously engaged in EEO activity, however, he did not show
that HR Specialist 1 who oversaw the initial screening portion of the selection process, was
aware of his prior EEO activity. The Agency also stated that Complainant did not show that
the Selecting Official, who was aware of his prior EEO activity, played a role in the initial
phase in which Complainant “screened himself out.” The Agency argues that these
deficiencies preclude showing a nexus existed between the prior EEO activity and the non-
selection.

The Agency noted that assuming Complainant could establish a prima facie case of reprisal, he
failed to demonstrate the Agency’s reason for disqualifying him for consideration for the
position was pretext for discrimination. The Agency noted that Complainant claimed the
Selecting Official did not select him due to a retaliatory motive. The Agency stated the record,
however, was devoid of evidence that the Selecting Official played any role in determining that
Complainant was not qualified for the position. The Agency stated the evidence indicated that
Complainant was self-screened-out from the position by failing to achieve a high enough score
on the application questionnaire. The Agency noted there was nothing in the record to
challenge this evidence or to show that the Agency official made any subjective judgments in
the initial screen-out phase of the process. The Agency concluded that Complainant failed to
produce any evidence that the Agency’s reason for not selecting him and disqualifying him at
the initial screen-out stage was pretext for retaliation.

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
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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”).

In the present case, we note the Agency articulated legitimate, nondiscriminatory reasons for
not selecting Complainant. Specifically, the Agency explained Complainant screened himself
out because he scored less than the minimum of “2” on one of the applicable job elements,
therefore, he was not referred for further consideration. As a result of the determination that
Complainant did not meet the minimum qualifications for the position, his name was not
included on the Certificate of Eligibles. The Selecting Official considered only the applicants
included on the Certificate of Eligible Candidates (Certificate). Thus, the Selecting Official
did not review Complainant’s application or consider him for selection. Complainant has not
shown that the Agency’s actions were a pretext for retaliation.

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
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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
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

August 16, 2016
Date