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

Equal Employment Opportunity Commission

Feb 22, 2019

0120170730 (E.E.O.C. Feb. 22, 2019)

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

Chauncey M.,1
Complainant,

v.

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

Appeal No. 0120170730

Agency No. FinCen-16-0243-F

DECISION

On November 30, 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
November 3, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that he was retaliated against for engaging in prior EEO
protected activity when:

1. His requests for work related travel were repeatedly denied between September 30, 2015
to December 7, 2015, while travel for his coworkers was promoted and supported;

2. On January 15, 2016, he received a “fully successful” on one critical element of his
“outstanding” performance review for the rating period from October 1, 2014 to September
30, 2015;

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.
0120170730

2
3. On March 8, 2016, his request for a grade increase (from GS-13 to GS-14) was denied; and

4. During March 3-18, 2016, his outreach and liaison duties with respect to Argentina were
reassigned.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Global Liaison
Specialist (GS-0301-13) at the Agency’s Global Liaison Section, Financial Crimes Enforcement
Network (FinCEN) facility in Washington, DC. On February 17, 2016, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the basis of reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 as set forth above. The
Agency explained that Complainant was provided the reasons for management’s actions and that
those actions were not based on retaliatory motives.

Claim 1: Denial of Travel

Complainant attested that he requested four work related travel trips. He alleged that his manager,
the Associate Director (S2) denied two travel requests he submitted in the fall of 2015.
Complainant stated that S2 also failed to provide any reasons for the lack of approval or denial of
a third request to travel to Mexico or the denial of a fourth request to travel to Argentina; and that
travel requests from others were not denied.

Complainant indicated that he was contacted a day before his scheduled travel to Mexico and
advised that the trip would be cancelled if S2 did not change the disposition in the system; that he
received an email from S2 regarding the proposed trip informing Complainant his participation in
the conference would most likely be approved but S2 needed more information.

Complainant stated that he subsequently sent several emails to S2 to remind him of the need for
approval to travel to Mexico, including resending his travel memo asking to change his departure
date. Complainant stated that even after multiple requests were made for travel approval, he never
received any communication about the trip from S2; and that S2 was reminded by the Acting
Office Director, Complainant’s first line supervisor (S1) to approve the trip but S2 never
acknowledged the multiple requests and never provided an explanation as to why he never
approved the trip.

S2 admitted he was responsible for determining whether International travel requests involving
members of the Liaison Division demonstrated a legitimate business need; and that if he believed
that there was a bona fide business reason, he forwarded a recommendation for approval. He
explained that regarding Complainant’s first two travel requests, he determined that there was not
a sufficient business reason to support Complainant’s travel, including that two other individuals
had been approved for one of the trips, and there was no need for a third individual to travel; and
that he informed Complainant that his request was not approved.
0120170730

3
S2 asserted that, in regard to the other two travel requests, he forwarded his approval to the Director
and the Chief of Staff; and that to the best of his knowledge, he received three requests for
Complainant to travel from S1. He explained that he informed the Chief of Staff that he could
provide a compelling business reason for Complainant’s attendance and he asked for the Mexico
trip to be approved, which the Deputy Director did approve. Unfortunately, the electronic travel
system, CONCUR, was not operational for a short period and he was unable to approve
Complainant’s reservation before the system terminated the reservation. He stated that he
contacted the Agency’s CONCUR liaison to determine if there was a way to bypass the system
but was told it was not possible; and that after Complainant’s reservation was lost, he informed S1
that Complainant needed to rebook his travel arrangements and arrived a day later in Mexico but
was told by S1 that Complainant did not wish to rebook.

S1 asserted that he told Complainant he believed his request for travel to Mexico would be
approved but that he required additional information to ensure they were putting forth the best
business justification, indicating that the action memos should include strong business reasons and
a listing of all planned activities and how those activities would support and accomplish the
Agency’s mission.

Complainant stated that he disagreed with the reasons provided by S2 regarding the Mexico trip
because he believed he had provided enough justification in his trip request.

Claim 2: The Annual Evaluation

Complainant alleged that during his performance review, S1 informed him he had not received a
higher rating on a “critical” element because S2 had received negative feedback from the
Director’s Office regarding a briefing Complainant gave the Director and the Chief of Staff, a
briefing he had been unprepared for but had to give because S1 showed up late.

S1 explained that Complainant received a “Fully Successful” rating on the critical element because
his performance during the period met the benchmark for that rating as the quality of some of his
oral and written products needed improvement.

Claim 3: The Denial of a Grade Increase

Complainant alleged that management was indirectly responsible for the decision not to increase
his grade level when the Agency decided not to reclassify his position and to elevate him a GS-14
grade level based on an evaluation that was due in part on written statement from S1 certifying
that the duties and responsibilities of the position were accurate, and that the title, series and grade
were appropriate.

The Agency explained that, consistent with the Office of Personnel Management (OPM) policies
and guidelines, Complainant’s duties, responsibilities and work assignments did not meet the
classification criteria to warrant a GS-14 grade level; and that the highest grade that could be
assigned to the position was a GS-13.
0120170730

4
Claim 4: The Reassignment of Responsibility for Argentina

Complainant stated that he received an email regarding information on security issues related to
Argentina and asking him to review and comment on the document, which he did. He further
stated that he was copied on an email conversation with the US Embassy in Argentina from a
coworker (C1), describing the details of his trip to Argentina and a joint press conference which
Complainant, the Global Liaison Specialist for the Western Hemisphere, knew nothing about.

Complainant also stated that he was contacted by S1 letting him know they would discuss the plan
the next day; however, Complainant had already acted by contacting a higher-level official via
email with copy to S2.

Complainant added that on that same day, he was copied on another email by C1 arranging a
conference call the next morning, but Complainant had left earlier than the arrival of the email,
therefore, he did not know about the conference call until the next day when he arrived and C1 and
S1 were already on the call. Complainant further stated that he was invited to C1’s briefing with
the Director, S2, and S1; and that neither of them offered him an explanation as to why C1 was
the one in charge of the briefing.

Complainant alleged that C1 never coordinated with him as the officer assigned to the Western
Hemisphere; that S2’s high-level assignments have benefitted C1 to the detriment of Complainant
because S2 made the ultimate decision to assign C1 to visit Argentina, and Complainant only
learned of the assignment through an email from S2 to C1 on which he was not copied but which
was later shown to him by S1; and that his e-mail reminder to S1 regarding his responsibilities for
the Western Region received no response.

Management denied that the Agency reassigned Complainant’s outreach and liaison duties relating
to Argentina, and that Complainant continued to handle the general Argentina portfolio; but that a
more experienced senior advisor was assigned to lead the Liaison Division’s review of the
Argentinian progress on an Action Plan with Complainant’s assistance.

At the conclusion of 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 Equal Employment
Opportunity Commission 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.

CONTENTIONS ON APPEAL

Complainant contends that the Agency’s final decision (FAD) does not take into account several
contradictions in management’s statements, and his extensive supporting documentation; that it is
based solely on management testimony and his supporting documentation was not given any
weight in the decision; and that the FAD does not evaluate or review his contention that all of his
0120170730

5
allegations have one common denominator – they all occurred under the supervision and/or
direction of S2.

Complainant states that he is requesting this appeal based on the fact that he was treated differently
than the other employees of similar grade in his office and within the Agency; the statements
provided by Agency officials are factually incorrect and contradict the underlying documentation;
he was subjected to higher requirements and standards with regards to “our” office’s procedural
requirements; his assigned duties and responsibilities were reassigned or removed which adversely
affected the outcome of his desk audit, his official position description of record, and his FY 2015
annual performance review; and he was the only Hispanic male within his office that was held
back from promotional or detail opportunities to advance his career within the Agency.

The Agency provided no statement on appeal.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Management asserted that there was no necessity for two of Complainant’s trips, and one was
cancelled due to a technology error; the lower than expected rating on one element was an accurate
0120170730

6
reflection of his performance; his grade level was not increased because his job duties did not meet
OPM’s classification criteria; and his Argentinian portfolio was not reassigned but that a more
experienced senior advisor was assigned to lead a specific project, the Liaison Division’s review
of the Argentinian progress on an action plan with Complainant’s assistance.

In an effort to show pretext, Complainant contends that trips requests were not denied for other
employees; and that the real reason behind management’s actions was a retaliatory motive based
on his prior EEO activity. However, the record indicates that other employees had had their travel
requests denied as well at various times. Moreover, even though Complainant did attempt to show
retaliatory motive regarding his other allegations, there is nothing in the evidence to establish a
nexus between Complainant’s prior protected EEO activity and management’s actions. We
therefore find that Complainant has provided no objective evidence or convincing argument to
show that management’s reasons for their actions are unworthy of belief.

CONCLUSION

As Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us. As such, we AFFIRM the Agency’s final 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
0120170730

7
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

February 22, 2019
Date