0120110679
04-15-2014
Complainant, v. Jacob J. Lew, Secretary, Department of the Treasury, Agency.
Complainant,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120110679
Agency No. FINCEN100233F
DECISION
On November 8, 2010, Complainant filed an appeal from the Agency's October 7, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
Whether Complainant established by a preponderance of the evidence that he was subjected to discrimination based on age when he was not selected for one of three possible positions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for the position of Financial Transaction Analyst, GS-301 -9/11, with the Financial Crimes Enforcement Network, under Vacancy Announcement Number FlNCENCP/09-104054 (Analytical) from April 29 to May 28, 2009. The record reveals that the positions could be filled in the Office of the Director, Office of Regulatory Analysis (ORA) and in the Office of Global Liaison. There were 58 names on the Knowledge, Skills, and Abilities (KSA) Rating Sheet for the GS-11 dated July 17, 2009 and 64 names on the GS-9 KSA rating sheet dated July 17, 2009. Complainant was one of 11 candidates on the Delegated Examining certificate for the GS-11 and one of four candidates on the certificate for the GS-9 position. Complainant was interviewed on August 10, 2009 by Assistant Director, Office of Law Enforcement Support (ADOLES) and Assistant Director, Office of Regulatory Analysis (ADORA). On September 29, 2009, Complainant received an email notifying him that his application was referred to the selecting official but another candidate was selected for the position.
On January 21, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (52) when on September 23, 2009, when he was not selected to the position of Financial Transaction Analyst, GS-301 -9/11, with the Financial Crimes Enforcement Network, under Vacancy Announcement Number FlNCENCP/09-104054 (Analytical).
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 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 Agency found that Complainant established a prima facie case of age discrimination. Complainant showed that he was a member of a protected group based on his age (52). Complainant applied and was qualified for the position but was not selected. The selectees were aged 25, 36, and 46.
The Agency found that the selecting officials and the interview panel articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the position. The Associate Director, Regulatory Policy and Programs Division, the selecting official (SO1) for the Regulatory Policy and Programs Division, stated that he relied on the interview panel and acted on the panel's recommendation memorandum. The Associate Director, International Programs Division, was the selecting official (SO2) for the Financial Transactional Analyst position for the International Division.
ADORA provided affidavit testimony that she was looking for candidates with the qualifications who could fit in her office. She stated she considered candidates who possessed knowledge and experience in matters related to FinCEN's mission, the Bank Secrecy Act (BSA), and its regulations and amendments, the USA Patriot Act Title III regulations, and Issues Impacting the financial industries, regulatory and law enforcement communities as it relates to legitimate and illicit financial transactions and movements of money.
ADORA stated she recommended Selectee1 for the GS-11 position. She stated Selecte1 was familiar with BSA reporting requirements and activities and could recognize possible money laundering or other suspicious activity as a result of annual BSA training while employed in the securities affiliate of a large domestic commercial bank and previously at other firms. She stated the Selectee1 was experienced in conducting research and/or analysis and understanding complex program issues, using a variety of sources.
ADORA does not discuss her reasons for selecting Selectee2 for the position in her office. However, the record contained a memorandum from ADORA to the Selecting Official recommending Selectee2. ADORA stated that Selectee2 had been working for FinCEN and in ORA as an intelligence research specialist and had previously been a regulatory officer and analyst. During her tenure in ORA Selectee2 had successfully achieved technical knowledge and use of FinCEN's analytical tools, developed her analytic skills by participating in several major projects to support agency initiatives, prepared or contributed to written products for regulatory and financial industry stakeholders, represented FinCEN on external working group/taskforces, and provided briefings to FinCEN senior leaders.
ADORA stated Complainant's responses to questions during the interview confirmed he had basic knowledge of the reporting requirements of the BSA since he had taken BSA training throughout most of his professional career and had been responsible at various points in his career for reviewing suspicious activity reports and currency transaction reports filed by his past employers. Complainant also had assisted in drafting BSA related policies and procedures at one credit union. ADORA stated Complainant was unable to provide information which demonstrated his knowledge of the USA Patriot Act requirements and did not provide a sufficient explanation/definition of strategic analysis to show he understood the concept.
ADOLES stated overall Complainant did not have the specific skills or the depth of knowledge and experience required for the position.
SO2 stated she never saw Complainant's resume but made the decision to hire Selectee3 because he was exceptionally qualified for the GS-9 position in the International Program Division, having a master's degree in international affairs. SO2 stated she was not aware of Complainant's age and age was not a factor in her decision.
In response, Complainant argued that he is well qualified for the position having approximately 30 years of financial services experience, most of which was directly related to the type of Bank Secrecy Act and Money Laundering investigations that FinCen was looking for in the position for which he applied. Complainant believes he would have been selected but for his age. Complainant stated ADOLES made the statement, "I guess you came here to ride into the sunset," and questioned him about how he would fit in to the environment where his supervisor might be younger and many of the attendees at training would be younger. Complainant believed the interview was tainted and questions and comments were made that were out of line and prohibited.
ADOLES stated he asked follow-up questions during Complainant's Interview about his willingness to accept a position as a lower grade analyst after holding apparent positions in management at significantly higher pay and responsibility and about his willingness to attend school for entry-level law enforcement personnel. He stated Complainant may have perceived that age was a consideration, but it was not.
However, ADOLES did deny having made references to age in his questions. ADORA testified she did not hear ADOLES make specific comments or ask questions as described by Complainant; however, she vaguely recalled he may have said something at one point about federal employees riding off into the sunset. She stated ADOLE asked a question about why Complainant would want a lower grade analyst position when he had previously served in various management positions at much higher pay levels and a question about Complainants willingness to attend training that might include younger individuals with less experience.
The Agency found, however, that a review of Complainant's and the selectees' applications did not show that Complainant's qualifications were demonstrably superior to those of the selectees'. The selecting official stated he considered the recommendations of the interview panel and the interview panel members stated Complainant's interview did not result in his recommendation for selection. As such, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant did not submit any statement in support of his appeal. The Agency requests that we affirm its finding of no discrimination.
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. (November 9, 1999) (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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
The Commission finds that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, ADORA stated Selecte1 was familiar with BSA reporting requirements and activities and could recognize possible money laundering or other suspicious activity as a result of annual BSA training while employed in the securities affiliate of a large domestic commercial bank and previously at other firms. She stated the Selectee1 was experienced in conducting research and/or analysis and understanding complex program Issues, using a variety of sources. ADORA stated that Selectee2 had been working for FinCEN and in ORS as an intelligence research specialist and had previously been a regulatory officer and analyst. During her tenure in ORA Selectee2 had successfully achieved technical knowledge and use of FinCEN's analytical tools, developed her analytic skills by participating in several major projects to support agency initiatives, prepared or contributed to written products for regulatory and financial industry stakeholders, represented FinCEN on external working group/taskforces, and provided briefings to FinCEN senior leaders.
SO2 stated she decided to hire Selectee3 because he was exceptionally qualified for the GS-9 position in the International Program Division, having a master's degree in international affairs.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this by showing that the Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish pretext is by showing that her qualifications are "plainly superior" to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
A review of the record does not reveal that Complainant's qualifications for the position were plainly superior to those of the selectees. The ADORA provided extensive written testimony regarding the difference between Complainant's qualifications and the other candidates' qualification. For example, Complainant was not able to answer pertinent questions and stated that he would have to "get back" to the interview panel with the answers; Complainant did not have the same knowledge regarding the BSA as other candidates; and did not have the equivalent computer skills as other candidates. We find that Complainant has not offered any evidence to rebut these assertions.
Further, we note that even though ADOLES stated "I guess you came here to ride into the sunset," we find that Complainant has not established that in this case these retirement related comments were intended to be a proxy for age based animus. See Hazen Paper Co. v. Biggns, 507 U.S. 604, 613 (1993). Similarly, we do not find persuasive evidence that ADOLES' questions regarding how Complainant would fit in to an environment where his supervisor might be younger and many of the attendees at training would be younger were necessarily a proxy for age based animus. Id. We find that ADOLES comments, while poorly phrased, were analytically distinct from age. Id. at 611. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. We find that Complainant failed to demonstrate that the Agency's proffered reasons for its selection decisions were a pretext for age discrimination. Accordingly, we find that Complainant failed to demonstrate that he was discriminated against as alleged.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD finding that Complainant was not discriminated against based o his age as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____4/15/14______________
Date
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0120110679
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110679