Wilfredo M.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Apr 5, 2018

0520170444 (E.E.O.C. Apr. 5, 2018)

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

Wilfredo M.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury,
Agency.

Request No. 0520170444

Appeal No. 0120160136

Hearing No. 570-2013-00857X

Agency No. FINCEN-12-0657-F

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in Wilfredo M. v. Dep’t of the Treasury, EEOC Appeal No.
0120160136 (June 15, 2017). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29
C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29
C.F.R. § 1614.405(c).

In Wilfredo M. v. Dep’t of Treasury, EEOC Appeal No. 0120160136 (June 15, 2017), the
Commission dismissed the appeal as untimely filed. The Commission determined that the
Agency certified that it mailed the final order by first class mail to Complainant’s attorney on
August 11, 2015, and it was presumed she received it on August 16, 2015. As a result, the
Commission found that Complainant’s September 29, 2015 appeal, was untimely filed and
dismissed the appeal.

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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On request for reconsideration, Complainant, through his attorney, contends that his attorney
never received the Agency’s final order. Further, Complainant’s attorney states that she filed the
Notice of Appeal on September 29, 2015, based on the 60-day timeframe to file an appeal
following an Agency’s failure to issue a final order following the issuance of an EEOC
Administrative Judge’s (AJ) decision on July 27, 2015. Complainant argues that since counsel
did not receive the final order on the purported date of August 14, 2015 or thereafter,
Complainant’s Notice of Appeal was timely filed on September 29, 2015. Accordingly,
Complainant requests that the Commission find that his appeal was timely and grant his request
for reconsideration.

The Agency contends that Complainant has not rebutted the legal presumption of receipt.
Accordingly, the Agency requests that the Commission deny Complainant’s request for
reconsideration.

Upon review, the Commission finds that Complainant’s request fails to meet the criteria of 29
C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the request. In so
finding, the Commission notes that the appellate decision based its dismissal of Complainant’s
appeal on the presumption that Complainant’s attorney received the Agency’s final order within
five days of the Agency’s purported mailing, and the record as it was before us at the time.
Nevertheless, upon our own motion and in the interest of fairness, the Commission reopens the
appellate decision and finds, based on the record as it currently stands, that Complainant’s
September 29, 2015 appeal should be deemed timely. Accordingly, the Commission VACATES
the appellate decision dismissing Complainant's appeal. The Commission will now address the
merits of Complainant’s complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a Global Liaison Specialist
in the International Programs Division at the Financial Crimes Enforcement Network (FinCEN)
in Vienna, Virginia. Complainant entered duty with the Agency in July 2009. Complainant
alleged that he was subjected to pettiness, ongoing retaliatory practices, and a hostile work
environment from 2010 through 2012. Complainant claimed that he was reprimanded for
engaging in conduct for which other employees were not reprimanded. For example,
Complainant alleged that his supervisor (S1) reprimanded him for taking a cash advance one
week in advance while other employees were not reprimanded for inappropriate government
credit card usage. Further, Complainant claimed that S1 made a negative remark in his Fiscal
Year 2011 performance review for failure to follow email protocol/procedures regarding where
to put her name in emails. In addition, Complainant alleged that he was audited for use of his
government Blackberry and told that he had to pay for personal calls while no other employee
was audited or forced to pay for personal calls.

Additionally, Complainant alleged that co-workers were given monetary awards for performance
that was comparable to his work, but he was not given an award. Complainant identified two
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Global Liaisons who were given “on the spot” awards, while he was not recognized for his
excellent work.

In early-August 2012, Complainant notified Agency officials that he would be resigning and
requested a departure evaluation. Complainant claimed that he never received a departure
evaluation from management. Complainant alleged that he was harmed by this because he
received a rating of “Minimally Successful” on his previous performance evaluation and it
limited his ability to seek federal employment elsewhere.

On November 8, 2012, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination and a hostile work environment on the bases of national origin (Hispanic),
color (dark-skinned), age, and in reprisal for prior protected EEO activity when:

1. In August 2012, Complainant was denied a positive Departure Evaluation rating;

2. Other employees were not reprimanded for engaging in conduct similar to that
engaged in by Complainant, and for which he was reprimanded; and

3. Other employees were given monetary awards for performance that was similar to
that of Complainant's, but for which he was not awarded.2

Following an investigation, Complainant requested a hearing. The EEOC AJ assigned to the
matter granted the Agency’s motion for a decision without a hearing, and issued a summary
judgment decision on July 27, 2015.

In the decision, the AJ found that the alleged incidents were insufficiently severe or pervasive to
establish a hostile work environment. Further, the AJ found that there was no evidence that the
conduct at issue was based on discriminatory or retaliatory animus. For example, as to claim (1),
the AJ found that contrary to Complainant’s allegations, the record evidence showed that he was
issued a departure evaluation on August 30, 2012. The Assistant Director confirmed that he
wrote Complainant’s departure evaluation and signed it on August 30, 2012. The Assistant
Director stated that he then provided it to the reviewing official, the Deputy Associate Director.
Complainant was rated as “Fully Successful.” There was some confusion as to who would mail
the evaluation to Complainant; however, the AJ determined that there was no evidence in the
record showing that it was intentionally delayed to discriminate or retaliate against Complainant.

With respect to claim (2), the AJ determined that all of the alleged reprimands Complainant
identified were untimely raised. Finally, as to claim (3), the Complainant alleged that two
employees outside of his protected classes were given “on the spot” awards by S1. The AJ

2 The Agency dismissed numerous additional claims and the EEOC Administrative Judge
assigned to the matter upheld the Agency’s dismissal. Complainant raised no challenges to the
dismissal of these claims on appeal; therefore, the Commission will consider these claims as
background evidence in support of Complainant’s overall hostile work environment claim.
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determined, however, that Complainant was not working with S1 during the time that the awards
were issued. S1 nominated two co-workers for the awards based on their work on back-to-back
successful weeklong program visits of foreign officials. Additionally, the Associate Director
stated that Complainant was assigned to him for a relatively short period of time and no award
was appropriate. Another management official noted that Complainant was not able to resolve
certain issues with the area of Peru for which he was responsible.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment. On August 11, 2015, the Agency issued a final order
fully implementing the AJ’s decision. Complainant filed the instant appeal without submitting
any arguments or contentions in support.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. The Commission finds that the AJ properly issued summary judgment as
the material facts are undisputed.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily
protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on his
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission finds that the alleged incidents were not sufficiently severe or pervasive to
establish a hostile work environment. Even assuming that the alleged conduct was sufficiently
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severe or pervasive to create a hostile work environment, the Commission finds that
Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory
animus. For example, as to his awards claim, S1 noted that Complainant received a monetary
award in Fiscal Year 2010 for his performance rating of “Exceeded.” ROI, at 293. S1 awarded
“on the spot” awards in 2012 to two employees for their work on back-to-back successful
weeklong visits of foreign officials. Id. at 217. Additionally, S1 awarded an “on the spot” award
to an employee for his work on developing and negotiating with governments across Central
America, the Caribbean, and South America through the Organization of American States Anti-
Drug Council principles and best practices to ensure that government agencies protected
Financial Intelligence Units’ information. Id. at 217-18. By contrast, the Associate Director
stated that Complainant did good, but not outstanding work on an investigation into a breach of
FinCEN information involving Peruvian officials during that time. Id. at 218.

With regard to his reprimand claim, S1 affirmed that Complainant would not know whether
employees were reprimanded for their actions due to the confidential nature of those personnel
matters. ROI, at 301. Nonetheless, S1 explained that Complainant was counseled regarding the
incidents raised and not formally reprimanded, as with all other employees. Id. S1 stated that
Complainant and all Global Liaison staff were reminded on a regular basis to copy her on email
correspondence, especially on critical issues, and that on one occasion, Complainant’s failure to
do so resulted in the Agency incurring unplanned costs. Id. at 302. S1 affirmed that
Complainant was one of several employees who were required to review the list of Blackberry
charges and pay for any overage beyond the 10 minutes per day personal use allowance. Id.
Finally, S1 confirmed that she verbally counseled Complainant numerous times regarding his
official credit card usage. Id.

Finally, with respect to the departure evaluation, the Assistant Director confirmed that he wrote
Complainant’s departure evaluation on August 30, 2012, and forwarded it to the reviewing
official. ROI, at 268. The record contains Complainant’s final evaluation signed by both
officials on August 30, 2012. Id. at 277-86. The Assistant Director mistakenly believed that
Human Resources had mailed it to Complainant; however, he later mailed a copy upon learning
that it was never sent to Complainant. Id. at 268-69.

The Commission agrees with the AJ that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal.
As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision
finding that Complainant was not subjected to discrimination, reprisal, or a hostile work
environment as alleged.

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CONCLUSION

After reconsidering the previous decision and the entire record, the Commission finds that
Complainant’s request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision
of the Commission to DENY the request. The Commission, however, has decided to reconsider
the previous decision on its own motion and VACATES its previous decision in Appeal No.
0120160136. The Commission AFFIRMS the Agency’s final order because the Equal
Employment Opportunity Commission Administrative Judge’s issuance of summary judgment
was appropriate and a preponderance of the record evidence does not establish that
discrimination occurred. Because the propriety of the Agency’s final order is being addressed on
its merits for the first time, the parties will be given reconsideration rights.

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

April 5, 2018
Date