Wilburn R.,1 Complainant,v.Mick Mulvaney, Acting Director, Consumer Financial Protection Bureau, Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120161232 (E.E.O.C. May. 3, 2018)

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

Wilburn R.,1
Complainant,

v.

Mick Mulvaney,
Acting Director,
Consumer Financial Protection Bureau,
Agency.

Appeal No. 0120161232

Agency No. CFPB-2014-0023F

DECISION

On February 19, 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
January 20, 2016, final decision 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
with the Agency. According to Complainant, beginning in 2010, he applied unsuccessfully for a
series of positions with the Agency. On July 9, 2014, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the basis of age (69) when he was not
selected for any of the following positions:

1. Policy Analyst, advertised under Vacancy Announcement No. 13-CFPB-594X;

2. Policy Analyst, advertised under Vacancy Announcement No. 11-CFPB-508P; and

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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3. Senior Policy Advisor, advertised by the Department of the Treasury in 2010 during
the “stand up” of the Agency when it was initially created.

The Agency accepted the complaint and conducted an investigation.2 At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation (ROI)
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). 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.

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”).

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).

In a non-selection case, a complainant may show that an employer’s reason for the non-selection
was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to
those of the selectee. Wasser v. Dept. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); See also Celestine v. Petroleos de

2 The Agency did not dismiss the complaint for untimely counselor contact. As it explains in its
final decision, that Agency extended the 45-day deadline for counselor contact because it could
not establish that Complainant was aware of the time requirement when the alleged discrimination
occurred.
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Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not
probative evidence of discrimination unless those disparities are of such weight and significance
that no reasonable person in the exercise of impartial judgment could have chosen the candidate
selected over the plaintiff for the job in question”); See also Burdine, 450 U.S. at 259 (noting that
in making hiring or promotion decisions, the employer has discretion to choose among equally
qualified candidates, provided the decision is not based upon unlawful criteria).

Claim #1 (Nonselection – Policy Analyst - Vacancy Announcement No. 13-CFPB-594X)

According to the Agency, Complainant was initially rated as “minimally qualified” on the bases
of his education and experience and placed on a “subject matter expert” certificate. The applicants
placed on that certificate were required to complete an essay-style “assessment,” describing the
applicant’s experience advocating a “policy position to an external stakeholder.” Complainant’s
essay was scored at 6 out of a possible 10 points. Applicants receiving a score of 8 or higher were
placed on a best qualified list and were further considered for selection. In view of his essay score,
Complainant’s application was not further considered.

This is a legitimate, nondiscriminatory reason for the Agency’s decision not to select Complainant
for this position. Complainant has adduced no evidence that the Agency’s reason is a pretext
designed to conceal discriminatory animus. Complainant argues that his application should have
received more favorable consideration because he had the most years of relevant experience among
the applicants for the position. The Commission notes that number of years of experience, alone,
is insufficient to establish that a candidate’s qualifications are observably superior. See Kopkas v.
U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011).

Claim #2 (Nonselection – Policy Analyst - Vacancy Announcement No. 11-CFPB-508P)

According to the Agency, no selection was made for this position because Vacancy Announcement
No. 11-CFPB-508P was cancelled before any selection was made. This is a legitimate,
nondiscriminatory reason for the Agency’s decision not to select Complainant for this position.
See, e.g., Sandy S. v. Department of Veterans Affairs, EEOC Appeal No. 0120162123 (November
29, 2017) (finding cancellation of vacancy announcement legitimate, nondiscriminatory reason for
nonselection). Complainant has adduced no evidence that the Agency’s reason is a pretext
designed to conceal discriminatory animus. The person whom Complainant identifies as the
successful applicant for this position was, in fact, hired for a different position, under a different
vacancy announcement.

Claim #3 (Nonselection – Senior Policy Advisor – Vacancy Announcement Not Specified)

The Agency explains that Complainant was not selected for this position because it never received
an application from Complainant and because it never sought to fill a vacancy in such a position.
In a nonselection claim, it is an element of complainant’s prima facie case to show that the Agency
sought to fill a vacant position and that complainant applied for the position in question.
McDonnell Douglas, supra, 411 U.S. at 802. (to establish a prima facie case in a discriminatory
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non-selection case, complainant must show “that he applied and was qualified for a job for which
the employer was seeking applicants”). Here, the record shows that, during the relevant time
period, the Agency never sought to fill the position of Senior Policy Advisor and that Complainant
never submitted an application for such a position. Indeed, during that period the Agency had a
moratorium on hiring anyone who (like Complainant) was not a current federal employee. ROI at
393. These are legitimate, nondiscriminatory reasons for the Agency’s decision not to select
Complainant for this position. Complainant has not shown it to be a pretext designed to conceal
discriminatory animus.

Disparate Impact

Complainant additionally claimed that the Agency’s hiring process “creates a systematic disparate
impact that works against the hiring of older workers and more experienced persons.” In general,
to establish a prima facie case of disparate impact, the complainant must show that an agency
practice or policy, while neutral on its face, disproportionately impacted members of the protected
class through presentation of statistical evidence that demonstrates a statistical disparity that is
linked to the challenged practice or policy. Watson v. Fort Worth Bank and Trust, 487 U.S. 977,
994 (1988) (the petitioner must present statistical evidence of a kind and degree sufficient to show
that the practice in question has caused the exclusion). Here, the record contains insufficient
evidence to show that the hiring practices identified by Complainant had a disproportionate impact
on applicants 40 years of age or older. Without such evidence, Complainant is unable to show
legally significant statistical disparities. Therefore, Complainant failed to establish a prima facie
case of disparate impact discrimination.

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 decision finding that Complainant
was not discriminated against as alleged.

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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.

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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

May 3, 2018
Date