Kenneth C.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

May 30, 2018

0120162854 (E.E.O.C. May. 30, 2018)

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

Kenneth C.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.

Appeal No. 0120162854

Hearing No. 450-2014-00101X

Agency Nos. BEP-11-0666-F,
BEP-12-0195-F

DECISION

On September 15, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 15, 2016, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Bookbinder at the
Agency’s Western Currency Facility in Fort Worth, Texas.

On August 14, 2011, and February 5, 2012, Complainant filed EEO complaints, later consolidated
by the Agency, alleging that the Agency discriminated against Complainant on the bases of age
(52) and reprisal for prior protected EEO activity when:

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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1. he was not given the opportunity to work as Acting Supervisor; and

2. he was not selected for the position of Bookbinder Assistant Supervisor, WE-4441-
05.

The Agency accepted the complaints and conducted investigations. At the conclusion of the
investigations, the Agency provided Complainant with copies of the reports of investigation (ROI)
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the
case granted the Agency’s June 20, 2014, motion for a decision without a hearing and issued a
decision without a hearing which the Agency received on August 12, 2016. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination as alleged.

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. 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. For the reasons set forth below, we find that this case presents no genuine issue of
material fact requiring a hearing to be resolved.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).
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Claim #1 (Not Appointed Acting Supervisor)

According to the Agency, Complainant was not appointed as an acting supervisor because he had
not participated in a program designed to evaluate potential candidates for the Assistant Supervisor
position while they served in the position on an acting basis. When Complainant was approached
about participating in the evaluation program he declined. He said he was not interested in the
Assistant Supervisor position because taking that position might require him to work on the
Midnight Shift permanently. Complaint No. BEP-12-0195-F ROI at 204-205. He confirmed his
disinclination to participate in writing. Id. at 134. This is a legitimate, nondiscriminatory reason
for the Agency’s action. Complainant failed to adduce evidence sufficient to support a finding
that it was a pretext designed to conceal discriminatory animus.

Claim #2 (Not Selected for Bookbinder Assistant Supervisor)

The Agency explains that Complainant was not eligible for the position because he had earlier
declined to participate in the evaluation program described above. This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant failed to adduce evidence
sufficient to support a finding that it was a pretext designed to conceal discriminatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order implementing the AJ’s
decision finding that Complainant had not established that he had been discriminated against as
alleged.

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.
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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).

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.

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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

May 30, 2018
Date