0120151960
07-13-2017
Drew N.,1 Complainant, v. Michael Piwowar, Acting Chair, Securities and Exchange Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Drew N.,1
Complainant,
v.
Michael Piwowar,
Acting Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120151960
Agency No. 000362014
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403(a), the Agency's April 15, 2015 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant and former employee at the Agency's Miami Regional Office ("MIRO") in Miami, Florida.
On November 14, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of age (61) and reprisal (prior protected activity) when he was not selected for the position of Supervisory Securities Compliance Examiner, SK183115 (Vacancy ID 1156777), also referred to as an "Exam Manager," at MIRO on or about October 14, 2014.
Complainant worked at MIRO from 1994 through 2006. In 2006, Complainant pursued a grievance against his immediate supervisor. The grievance was denied and Complainant left the Agency effective December 1, 2006. Since then, Complainant held multiple private sector positions that were SEC-related, including Associate Director at the Financial Industry Regulatory Authority New York Regional Office from April 2011 through June 2013.
When Complainant applied for the Exam Manager position at MIRO in July 2014, he was selected by the Agency as one of four eligible candidates to fill two positions. Complainant underwent a panel interview. The panelists included the Regional Director ("P1"), who was the selecting official, two Assistant Regional Directors for MIRO Exam programs ("P2" and "P3"), and the Associate Regional Director for Examinations ("P4"). At the recommendation of his panel, P1 selected two internal candidates over Complainant.
Selectee 1 ("S1") (male, 47, no prior EEO activity), a Staff Accountant 5K-14 in the Investment Adviser, Investment Company Examination Program and Selectee 2 ("S2") (female, 50, no prior EEO activity) was a Securities Compliance Examiner (GS-13). Both S1 and S2 had worked at MIRO since 2003. The panelists all cited S1 and S2's familiarity with the internal system, comfort and up to date knowledge of the new regulations and laws, and their proven track records working for the Agency. P4 was S1's supervisor, and P2 described her firsthand knowledge of both S1 and S2's work ethic, and how they already established strong working relationships with the staff they would supervise.
While the panelists were also familiar with Complainant's work, they emphasized that a lot had changed in the industry since he left, and S1 and S2 were the best qualified for the position because of their experience within the Agency already. Complainant alleges this was pretext for discriminating against him for his age given that he had much more experience than both candidates, including past Agency experience. He interpreted P1's statement that he would need extensive training to catch up as implying that he could not learn new things due to his age. As P1 and P2 were aware of the 2006 grievance; and P4, who was Complainant's second line supervisor had read it and been peripherally involved, Complainant also alleges that his nonhire was motivated by retaliation.
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"). Per 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
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case 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.2 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
The Commission does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). We have long held that Agencies have broad discretion to carry out personnel decisions. Burdine, 450 U.S. at 259. It is not our function to substitute our judgment for that of selecting officials familiar with the present and future needs of their facility and therefore in a better position to judge the respective merits of each candidate; unless other facts suggest that proscribed considerations entered into the decision-making process. See Bauer v. Bailar, 647 F. 2d 1037, 1048 (10th Cir. 1981); see also Stiles v. Dep't of Transportation, EEOC Request No. 05910577 (Jun. 27, 1991) (in the absence of plainly superior qualifications belonging to complainant to compel a finding of pretext, the Commission will not second guess the agency's personnel decisions). Furthermore, employers have greater discretion when choosing management level employees. See Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
The Agency's legitimate nondiscriminatory reasons for selecting S1 and S2 is based on their experience working at MIRO for the past decade. Since Complainant left MIRO in 2006, extensive legislation impacting the financial sector resulted in major changes to Agency protocol. Notably, the Tips, Complaints and Referral ("TCR") system and the National Exam Program were updated to accommodate the new regulations and became much more complex. Even though Complainant was familiar with the new laws and regulations, he would need to undergo "significant training" to get up to speed on the new TCR and the National Exam Program, and both were integral to the Exam Manager position.
On appeal, Complainant is essentially arguing that he has the capacity to establish productive relationships with exam and enforcement staff and that he has the capacity to undergo "substantial training" to successfully conduct exams within the Agency's new protocol. However, the Agency has emphasized that it chose the selectees, because they already had this knowledge. See Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (finding the agency properly exercised its discretion when it chose two applicants based on their supervisory experience within the agency as complainant did not proffer any evidence to establish that his supervisory experience, gained outside the agency, was comparable to the agency supervisory experience). Complainant has not shown how his experience over the past 9 years in the private sector, is equal to that of the selectees given that he, unlike the selectees would require training.
Adequacy of the Record
Our regulations provide that an Agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint and define an appropriate factual record as one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. See 29 C.F.R. � 1614.108(b). While the agency has an obligation under 29 C.F.R. � 1614.108(b) to develop an impartial and appropriate factual record, the complainant can also cure defects in an investigation, after reviewing the report of investigation, by notifying the agency (in writing) of any perceived deficiencies in the investigation or by requesting a hearing before an AJ. See EEO Management Directive 110 ("MD-110), Ch. 6, � XI and Ch. 7, � I (Aug. 5, 2015); e.g., Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120110894 (Aug. 5, 2014).
On appeal, Complainant disputes P1, P2, and P4's statements in the record and repeatedly offers to provide this Commission with lists of former and current Agency employees who would support his claims. However, Complainant chose not to take advantage of his right to request a hearing to cure any defects in the investigation, and instead requested a Final Decision from the Agency. If Complainant wanted an opportunity to develop the record through discovery and cross examination of witnesses, he should have opted to request a hearing before an AJ. Moreover, our review of the record finds that the Agency's investigation is sufficient for a reasoned determination on Complainant's non-selection complaint. The record contains the vacancy announcement and application packages for Complainant and the two selectees, as well as the Panel's third choice candidate. The record also includes affidavit testimony from Complainant, and the selecting officials. Although the record does not contain affidavit testimony from Complainant's proffered (but unidentified) witnesses, there is no indication that he is referencing someone involved in the selection process. Accordingly, we find that the Agency developed an impartial and appropriate factual record that allows us to draw conclusions as to whether age discrimination occurred.
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 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 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
July 13, 2017
__________________
Date
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.
2 There is no evidence that Complainant engaged in prior EEO activity to establish a prima facie case, but we will review the matter based on the Agency's legitimate nondiscriminatory reasons.
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