Lonny C.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

2019000397 (E.E.O.C. Sep. 19, 2019)

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

Lonny C.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.

Appeal No. 2019000397

Hearing No. 550-2017-00567X

Agency No. MINT-17-0168-F

DECISION

On September 13, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 2, 2018 final order 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.

BACKGROUND

During the period at issue, Complainant worked as a Metallurgist Engineer at the Agency’s San
Francisco Mint in San Francisco, California.

On January 9, 2017, Complainant filed a formal EEO complaint claiming the Agency
discriminated against him on the bases of national origin (India), sex (male), and age (over 40)
when, on October 8, 2016, he was not selected for the position of Industrial Manager–Coining,
advertised under Vacancy Announcement No. 16-MINT-281-M.

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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After an investigation of the complaint, the Agency provided Complainant with a copy of the
investigative file, and Complainant requested a hearing before an EEOC Administrative Judge
(AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a
Hearing on October 31, 2017. Complainant responded to the Notice. On July 19, 2018, the AJ
issued a decision by summary judgment in favor of the Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

The Deputy Superintendent (American male, year of birth 1970) of the San Francisco Mint was
the selecting official for the Industrial Manager-Coining position. He was also the agency official
who had initially hired Complainant as a Metallurgist.

In late August 2016, Complainant applied and was one of three candidates deemed to be best
qualified for the subject position. The three candidates, including Complainant, were
interviewed by a three-member panel (two American males, born in 1981 and 1959, and one
American female, born in 1963). The panel reviewed the candidates’ applications, conducted
interviews and made recommendations to the selecting official.

During the interviews, the candidates were asked the same job-related questions and questions
concerning their leadership style and skills.

According to the three panel members interviewed during the investigation, they felt that a
named female candidate was “clearly better prepared,” and took her time in answering the
questions and was better organized. The other male candidate provided a “more detailed breadth
of knowledge and experience” than Complainant and was a “stronger” candidate. The panel
members noted that Complainant “was simply a weaker candidate. His answers were not very
strong and [they] recall[ed] he did not answer some questions completely.” They also noted that
Complainant failed to “satisfactorily present any managerial experience he may have possessed.”
The other male candidate had been the Coining Chief at a different Mint and the female
candidate had served in the position of Acting Chief of Coining at the San Francisco Mint.

The panel recommended these other two candidates for the subject position. The panel did not
recommend Complainant.

The Deputy Superintendent conducted one-on-one interviews with the two referred candidates.
The Superintendent also interviewed the candidates. Based upon the interviews, the Deputy
Superintendent selected the female candidate (Vietnamese American, in her thirties) for the
subject position, and the Superintendent concurred.

The Deputy Superintendent only interviewed the two candidates who had received the highest
scores from the first-round interview panel. The Deputy Superintendent stated that he did not
consider Complainant for the subject position because he was not referred to him by the initial
panel.
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He also stated that he conducted a non-selection meeting with Complainant who “seemed to
understand that he may not have fully prepared for the interview nor had he provided adequate
answers to the panel’s questions.”

The Superintendent (American male, year of birth 1972) was the concurring official regarding
the subject position. He explained that after the panel interviewed the candidates, and “then
forwarded the names of the top two candidates to [the Deputy] for second interviews. [the
Deputy] and I conducted the second-round interviews and made a selection. I approved his
selection.”

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final order, adopting the AJ’s decision.

The instant appeal followed.

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail,
she must first establish a prima facie 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).
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The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its
actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. The first
interview panel did not recommend Complainant for further consideration because they did not
find him as prepared for the interview and noted some of his answers were incomplete as
compared to the other two candidates. The panel members also noted that Complainant did not
highlight any managerial experience, while the two other candidates had already actually
performed in the position or a similar one at another Mint.

We conclude that there is ample support for the AJ’s conclusion that Complainant failed to
proffer adequate evidence to show that the Agency’s articulated reasons were a pretext for
discrimination. Complainant has not shown that any alleged disparities in qualifications between
himself and the selectee are “of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in
question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson
Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Complainant also asserts that the selectee was
preselected as she had previously been chosen to act in the position and had also been approved
to attend costly Lean Six Sigma training. However, even if preselection had been proved, it
would not establish discrimination unless it was premised on a factor unlawful under Title VII or
the ADEA. Andrew L. Pietrzyk v. U.S. Postal Service, EEOC Request No. 05910199 (April 26,
1991); Goostree v. State of Tennessee, 796 F. 2d 854, 861 (6th Cir. 1986). Such evidence has
not been presented or proffered on appeal.

CONCLUSION

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination was established.
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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.
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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

September 19, 2019
Date