[Redacted], Bernard S., 1 Complainant,v.Jay Clayton, Chair, Securities and Exchange Commission, Agency.

Equal Employment Opportunity Commission

Jul 29, 2020

Appeal No. 2019001972 (E.E.O.C. Jul. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernard S.,1 Complainant, v. Jay Clayton, Chair, Securities and Exchange Commission, Agency. Appeal No. 2019001972 Agency No. SEC 00019-2016 DECISION 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 February 19, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Supervisory Staff Accountant/Examination Manager at the Agency’s Regional Office in Los Angeles, California. On April 8, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on sex and age (YOB: 1965) when: 1. on January 27, 2016, Complainant was notified that he was not selected for one of the ARD [Assistant Regional Director] positions advertised under Vacancy Announcement No. 16-IN-1539141-DQ; and 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. 2019001972 2 2. management continually assigned him a substantially heavier workload than the eight other Examination Managers. After its investigation of the complaint,2 the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew his request. On February 19, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant argues, through counsel, that the Commission should not accept an affidavit from the Human Resources Specialist that the Agency submitted for the first time on appeal. Complainant argues that the affidavit is new evidence and the Agency could have interviewed the Human Resources Specialist before the investigation into his claims concluded. ANALYSIS AND FINDINGS Preliminary Matter - Evidence Submitted by Agency on Appeal As an initial matter, we address the Agency’s submission on appeal. Our review of the record indicates that the Agency concluded its investigation of the formal complaint on September 22, 2016. The record further indicates that the Human Resources Specialist was not interviewed during the investigation, and consequently, the affidavit the Agency submits on appeal is dated April 25, 2019. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. The Agency has not provided arguments or evidence to show that the Human Resources Specialist was not available to testify during the investigation, or any explanation as to why the individual was not identified as a witness to the investigator during the investigative stage. Accordingly, we decline to consider this new evidence on appeal. Merits of Subject Claims A claim of disparate treatment is examined under the three-part 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 2 The record indicates that the Agency initially dismissed claim 2. However, the Agency subsequently issued a revised acceptance letter dated, May 5, 2016, accepting claim 2 for investigation. 2019001972 3 factor in the adverse employment action. See 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. 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). 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim 1 - Non-selection The Regional Director (“RD”) testified that she was Complainant’s third-level supervisor and served on a three-person interview panel with the Associate Regional Director (“ARD1”), and the Managing Executive (male). The panel interviewed seven candidates, and the RD explained that she reviewed the candidates’ resumes and she rated each candidate based on their responses to the interview questions and oral communication abilities. The RD further explained that the panel used a “structured interview process” that was approved by Human Resources. As a result, the candidates were all asked the same questions and the panel rated their responses and oral communication skills on a scale of 1 to 5. Out of the seven candidates, the RD stated that Complainant ranked fifth because Complainant’s responses to the interview questions were not comprehensive and “did not demonstrate in-depth knowledge and ability in those areas critical for an ARD.” In contrast, the RD indicated that the selectees (“Selectee 1” and “Selectee 2”) communicated effectively, skillfully discussed depth of experience, and provided insightful suggestions on how to constructively handle differences in opinion with senior staff members. ARD1 was Complainant’s second-level supervisor and was the selecting official for the position at issue and provided testimony corroborating the RD’s statements regarding the selection process. He said that he consulted with an organizational psychologist from Human Resources to develop the questions used for the structured interviews. ARD1 also clarified that the Agency had two separate postings for the position. The first positing was for employees in competitive service (Vacancy Announcement 16-IN-1539141-DQ) and the second posting was for employees in the excepted service (the attorney job series: Vacancy Announcement 16-IN-1539147-DQ). 2019001972 4 ARD1 explained that both positions were posted at the same time and five candidates made the list of qualified candidates for the competitive service vacancy and two candidates made the applicant certification list for the excepted service vacancy. Although the ARD1 noted that Complainant applied for the competitive service vacancy, the ARD1 indicated that the panel interviewed all seven candidates and considered them together. The ARD1 further explained that all of the candidates were qualified. However, the interview process was used to find the best qualified candidate. The ARD1 confirmed that Complainant’s overall interview score of 3.11 ranked fifth among the seven candidates because his responses to the interview questions lacked detail, were generally cursory, were not judged to be forward thinking, and failed to evidence the skills needed to excel at the position. Consequently, Complainant was not selected for the position. Two other candidates (one male, one female; both younger than Complainant) were selected. In contrast, the ARD1 explained that Selectee 1 had an interview score of 4.11 and ranked first and Selectee 2 had an interview score of 3.50 and ranked third out of the seven candidates. Although the ARD1 acknowledged that Selectees 1 and 2 were also attorneys, the ARD1 indicated that being an attorney was not a requirement for this position. Rather, it was considered a “favorable qualification” for the position because the position required coordination with the enforcement program which was staff by attorneys. A copy of the interview score results reflects that Complainant ranked fifth with a score of 3.11, Selectee 1 ranked first with a score of 4.11, and Selectee 2 ranked third with a score of 3.50. The Managing Executive also concurred with the assessment of the other two panelists about the relative qualifications of the selectees and Complainant, and stated that during his interview, “I do not recall him standing out or distinguishing himself from the other candidates.” In contrast, he stated the selectees had stronger communication skills and very detailed answers. Based on the evidence of record, we conclude that Complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons for the selections made were a pretext for discrimination. Complainant has not shown that the alleged disparities in qualifications between himself and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] 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). All the panelists provided specific and detailed examples contrasting the answers provided during the interviews by the selectees and Complainant that addressed the criteria they were looking for, including demonstrated leadership, foresight and initiative, ability to navigate differences with senior management, and technical expertise. The panelists also viewed the selectees being attorneys, which Complainant was not, as an extra positive. In sum, we find that Complainant failed to prove, by a preponderance of the evidence, that he was discriminated against as alleged. 2019001972 5 Claim 2 - Increased Work Load The Associate Regional Director from December 2014 through her retirement in September 2015 (“ARD2”) testified that the Agency underwent a reorganization on June 1, 2015. The reorganization allowed Examination Managers to choose whether they wanted to work in the broker-dealer exam program only, the investment advisor exam program only, or both broker- deal and investment advisor programs. ARD2 noted that Complainant was the only Examination Manager who wanted to work only in the broker-dealer program. Because the reorganization also allowed examiners to choose which program they wanted to be assigned, Complainant was assigned all examiners who requested only to work in the broker-dealer program. However, ARD2 clarified that while Complainant may have received more examiners than other Examination Managers, these assignments were temporary. Additionally, ARD2 explained that the examiners assigned to Complainant were “by far more senior and experienced” than other examiners reporting to other the Examination Managers, and Complainant was not going to be assigned any of the newly hired examiners who were expected to onboard on September 30, 2015. ARD2 also acknowledged that Complainant’s Assistant Director (“AD2”) retired in July 2015. However, both ARD2 and the AD1 explained that it was not the Agency’s practice to appoint acting Assistant Directors when a vacancy occurred. For instance, AD1 explained that ARD1 was appointed to his position on January 25, 2014 after another Assistant Director (“AD3”) retired on August 31, 2014. ARD1 explained that an Agency reorganization caused the change in Complainant’s workload. ARD1 further explained that the reorganization provided Examination Managers the option of remaining in their current group or joining a new group that would examine all types of registered entities. Because Complainant was the only Examination Manager who chose to remain in the broker-dealer group, Complainant was then assigned the seven examiners who also elected to join this group and work under him. ARD1 noted that Complainant supervised the seven examiners from July 2015 through February 2016, but starting in February 2016, Complainant was only responsible for four examiners. ARD1 denied being aware of Complainant receiving additional work after his ARD2 retired and was only aware of the additional work he received as a result of the reorganization. Nevertheless, ARD1 indicate that Complainant’s workload of seven examiners for a period of seven months was not a heavier workload than that of others Examination Managers. ARD1 noted that during fiscal year 2015, Complainant tied for the fewest number of closed exams (13 total) out of the other Examination Managers. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex and age. 2019001972 6 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2019001972 7 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 29, 2020 Date