0120162730
03-23-2018
Riley G.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Office of the Comptroller of the Currency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Riley G.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Office of the Comptroller of the Currency),
Agency.
Appeal No. 0120162730
Agency No. OCC-16-0093-F
DECISION
On August 29, 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 July 27, 2016 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. and 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 decision.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a Bank Examiner - Compliance in the Office of the Comptroller of the Currency (OCC), at an Agency field office in Overland Park, Kansas. Effective December 2, 2015, Complainant retired from the Agency.
On February 13, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (63) when, in October 2015, it failed to select Complainant for a National Bank Examiner (Bank Secrecy Act (BSA)/Anti-Money Laundering (AML) Compliance Specialist) position in an OCC location in Washington, DC.
Investigation
Complainant
During the EEO investigation, Complainant stated that he has over 26 years of relevant experience, including experience developing and revising BSA policy matters, and has been formally recognized as a BSA/AML subject matter expert. Complainant stated that the selected candidate is a female who is an attorney, rather than an examiner with material experience in BSA examinations. Complainant stated that the Agency prefers hiring females, and that, when the original selectee withdrew from the vacancy, the Agency should have hired the next highly- qualified candidate. Complainant stated that he left the Agency because "it became readily apparent [he] could not further advance [his] BSA specialty career interests at the [Agency] without the possibility of additional discrimination."
Agency Response
The BSA/AML Compliance Policy Director (S1) (male, 50) stated that he and the Senior Deputy Controller for Compliance and Community Affairs (S2) (female, 56) chose a candidate (C1) (female, age unknown) based on application materials only. The two did not conduct interviews for the vacancy. S1 added that C1 withdrew her application about the same time they selected her. There were only two candidates on the vacancy certificate - C1 and Complainant. S1 stated that he and S2 chose not to select anyone else and to repost the position later. S1 stated, in November 2015, he called Complainant to inform him that the Agency did not select anyone for the vacancy, at which time Complainant informed him that he planned to retire from the Agency and move to the Federal Reserve Bank.
S1 stated that the first selectee, C1, had "significant legal experience in BSA/AML and current experience in large bank BSA/AML quality control." S1 noted that those skills would have been valuable to existing department projects. Further, S1 stated that C1 worked for the Office of Foreign Assets Control for four years and the Agency interacted with them regularly. Also, S1 stated that C1 was an employee of the Agency's DC headquarters so she had a good understanding of how headquarters operates.
S1 stated that, in November 2015, the Agency re-posted the BSA/AML Compliance Specialist vacancy. He stated there were three applicants, all of whom are male including Complainant. S1 stated that management did not conduct interviews and chose a second selectee (C2) based on the strength of the candidate's background and application materials. S1 stated that C2 was selected based on his three years of prior policy experience in OCC and experience in large bank examination and international and interagency work. C2 began the position effective May 1, 2016.
Summarily, S1 stated that Complainant's experience was primarily in field examination work, which although valuable, the Agency sought skills related to large bank BSA/AML examination, enforcement cases, and interagency background. S1 stated that the Agency did not select Complainant because other applicants possessed stronger BSA/AML backgrounds.
Post-Investigation
Following 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 EEOC Administrative Judge or an immediate final agency decision. On July 11, 2016, Complainant requested a final agency decision. In accordance with Complainant's request, 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. The instant appeal from Complainant followed.
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 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").
Non-selection
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on sex or age, the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position at issue. We find further that Complainant failed to show, by a preponderance of the evidence, that the articulated reasons are a pretext for discrimination. Both Complainant and the two selectees, C1 and C2, were found to hold at least the minimum qualifications for the BSA/AML Compliance Specialist position. The selecting official, S1, stated that Complainant's experience in field examination work was valuable, but the Agency sought skills related to large bank BSA/AML examination, enforcement cases, and interagency background. S1 stated the other applicants possessed stronger BSA/AML backgrounds than Complainant.
We find that Complainant has not shown that his qualifications were so superior to those of the selectees as to compel a finding of discrimination. Title VII does not prohibit an agency from selecting the candidate of its choice from among a group of eligible candidates who are deemed qualified for the position provided the decision is not made on a prohibited basis. Beckett v. Dep't of the Navy, EEOC Request No. 05880086 (July 25, 1988).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision.
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).
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
March 23, 2018
__________________
Date
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
0120162730
6
0120162730