Elvis G.,1 Complainant,v.Jay Clayton, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0120171508 (E.E.O.C. Jun. 14, 2018)

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

Elvis G.,1
Complainant,

v.

Jay Clayton,
Chair,
Securities and Exchange Commission,
Agency.

Appeal No. 0120171508

Hearing No. 570-2016-00403X

Agency No. SEC-00025-2015

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated February 23, 2017, finding no discrimination
regarding his 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency. On June 26, 2015, Complainant filed his complaint alleging
discrimination based on age (over 40), race (African-American), color (dark), and religion
(Quaker)2 when on May 13, 2015, he learned that he was not selected for the Financial
Economist position advertised under Delegated Examining (DE) authority in vacancy
announcement number 15-DE-1326665-KR. Upon completion of the investigation of the
complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ).

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.
2 The record indicates that the basis of religion was added later.
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On February 13, 2017, the AJ issued a decision without holding a hearing, finding no
discrimination. The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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. 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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency had articulated legitimate, nondiscriminatory
reasons for the alleged incident. The record indicates that on February 17, 2015, the Agency
announced one vacancy for the Financial Economist position in Washington, D.C. under vacancy
announcement number 15-DE-1326665-KR (DE posting) and also under vacancy announcement
number 15-MP-1326781-KR (Merit Promotion (MP) posting). Complainant, a Social Investing
Advisor with a private company (Creative Investment Research, Inc.) in Washington, D.C.,
applied for the position at issue under vacancy announcement number under the DE posting.

An Agency Human Resources (HR) Specialist indicated that she was responsible for reviewing
applications and creating the certificate of eligible for the position at issue. Under the DE
vacancy announcement, applicants eligible for veterans’ preference received selection priority
over non-veterans’ preference eligible. We note that the DE vacancy announcement specifically
indicates the preference. Complainant admits the same.

The HR Specialist stated that 92 applicants, including Complainant, applied for the position
under the DE vacancy announcement. Specifically, the HR Specialist stated that in his
application, Complainant did not indicate he was a veteran or provide documentation stating he
was a veteran; thus, he was not included on the certificate of eligibles and was not further
considered for the position. The HR Specialist indicated that under the DE vacancy
announcement, only one applicant was included on the certificate of eligibles since he was the
only veteran.

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The HR Specialist indicated that under MP vacancy announcement, only current federal
employees were eligible to apply for the position. Complainant did not apply under this
announcement. The Agency ultimately selected a selectee from the MP vacancy announcement
who met the criteria requirements and the specialized experience requirements set forth in the
announcement. The AJ noted that the selectee also submitted his application under the DE
vacancy announcement but he was not eligible for veterans’ preference and was not on the
certificate of eligible and was not considered under the DE vacancy announcement.

After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s
legitimate, nondiscriminatory reason for not selecting him for the position. Based on the
foregoing, we find that Complainant failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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.
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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

June 14, 2018
Date