Elvis G.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

Jun 14, 2018

0120161427 (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.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Office of the Comptroller of the Currency),
Agency.

Appeal No. 0120161427

Agency No. OCC-15-1412-F

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated February 26, 2016, finding no
discrimination concerning 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 decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for
employment at the Agency. On July 13, 2015, Complainant filed his complaint alleging
discrimination based on age (over 40), race (Black), color (dark), and sex (male) when on June 2,
2015, he was notified that he was not selected for the Financial Economist (Fellowship) position,
NB-0110-06/06, with the Office of the Comptroller of the Currency (OCC), Washington, D.C,
announced under Vacancy Announcement No. EXT-SK-15-015. After completion of the
investigation of the complaint,

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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Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency
thus issued its final Agency 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 (EEO MD-110), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incident. The vacancy announcement at issue indicated that the Financial
Economist (Fellowship) position’s major duties involved conducting analyses of quantitative
models and methods for valuation and risk measurement in the areas of asset-liability
management, financial market risk, and counterparty credit risk. In order to meet the basic and
minimum qualifications, applicants must meet: educational requirements with a degree in
economics; specialized experience equivalent to the next lower level, NB-05 or GS-13 grade
levels via the public or private sector; and one year of extensive experience in evaluating,
developing and conducting research using theories and quantitative methods in finance,
economics, or statistics and the application of such research to topics related to financial markets,
financial instruments, or the financial institution.

The Agency stated that 30 applicants, including Complainant, applied for the Financial
Economist (Fellowship) position at the Agency in Washington, D.C. Complainant and 27 other
candidates were determined not to be qualified for the position at issue either due to their failure
to meet minimum qualifications or failure to submit required documentation. Only two
candidates, who were ultimately selected, were referred to the selecting official via certificate of
eligible.

Specifically, the Human Resources (HR) Specialist in the Agency’s Dallas Field Office, Irving,
Texas, indicated that she initially reviewed the applications for the required documentation and
for minimum qualification. The HR Specialist stated that she then submitted the package to one
of her peers for quality control review. The HR Specialist stated that: the package of qualified
applicants was then submitted to a subject matter expert for rating; the ratings were sent to
quality control for review and approval; the package was then returned to her; and based on the
information she received, she created a certificate of eligibles with the best-qualified applicants.
The HR Specialist stated that she then referred the certificate of eligibles to the selecting official.
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The HR Specialist stated that since Complainant failed to meet the minimum qualifications for
the position, his name was not in the certificate of eligibles and he thus was not referred to the
selecting official. The HR Specialist indicated that at the relevant time, she did not know
Complainant and did not know his age, race, color, or sex. The selecting official conducted
interviews and ultimately selected two selectees who were in the certificate of eligibles for the
position at issue.

We note that Complainant’s resume reflects, in part, that: he was a Social Investing Advisor with
a private company (Creative Investment Research, Inc.) in Washington, D.C, since 1989; he
testified on the Housing Finance Regulatory Improvement Act before the Financial Services
Subcommittee of the House of Representatives in 2000; he testified on the New Markets Tax
Credit Program before the House Ways and Means Select Revenue Measures Subcommittee in
2009; he published “The JOBS Act; Crowdfunding for Small Businesses and Startups;” he wrote
a commentary column on small business topics for the Washington Post; he was a part-time
faculty for the spring semester in 2013, at Georgetown University in the Master of Professional
Real Estate program; he submitted a “Friend of the Court” brief in a case before the U.S. Court
of Appeals for the Second Circuit concerning a settlement agreed to by the U.S. Securities &
Exchange Commission and Citigroup Global Markets Inc. in 2012; and he earned a master’s
degrees in economics and finance.

Selectee #1’s resume reflects, in part, that: he was an Assistant Professor, School of Business and
Justice Studies, Utica College, since 2013, and taught graduate and undergraduate level
economics and financial economics classes; he conducted academic research projects such as
developing volatility measurement and volatility models, valuation, and risk analysis of financial
instruments and examined rare event risks in financial markets and financial institutions; he
published research papers concerning his works in 2011, and 2015; and he earned a master’s
degree in economics and a doctorate in economics.

Selectee #2’s resume reflects, in part, that: she was an Assistant Professor at Marymount
University since 2011, and taught graduate and undergraduate level finance classes; she
conducted academic research on finance markets; she worked for Cornerstone Research, Inc., a
litigation consulting company in Washington, D.C; she made presentations and published papers
on economics and management science in 2009, and 2014; and she earned a master’s degree in
statistics and a doctorate in finance.

Based on the foregoing, we find that Complainant’s resume reflects that he was a long-tenured
investment advisor and met the basic educational qualifications but did not meet the minimum
qualifications. Specifically, we note that his resume does not reflect that he had at least one year
of extensive research experience in finance, economics, or statistics described in the vacancy.
After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed to
show that his qualifications for the position were plainly superior to the selectees’ qualifications.
See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).
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Based on the foregoing, we find that Complainant has 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 (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.
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).

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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