Renee P.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

2018000059 (E.E.O.C. Apr. 17, 2019)

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

Renee P.,1
Complainant,

v.

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

Appeal No. 2018000059

Agency No. FINCEN-17-0048-F

DECISION

On August 21, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s September 20, 2018 final order 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.

BACKGROUND

On November 21, 2016, Complainant, an applicant for the position of Director, Officer of Special
Measures, Financial Crimes Enforcement Network (FINCEN) in Washington, D.C., filed the
instant formal complaint. Complainant claimed that the Agency discriminated against her on the
bases of race (African-American), sex (female), and color (black) when:

on or about October 25, 2016, she was not selected for the position of Director,
Officer of Special Measures, GS-1801-15/15, advertised under Vacancy
Announcement Number 16-FINCEN-56.

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ).

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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Thereafter, the Agency filed a Motion for a Decision Without a Hearing.2 On September 17, 2018,
the AJ issued a decision by summary judgment in favor of the Agency. In the instant final order,
the Agency adopted 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). 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).

2 The record does not contain a copy of the Agency’s motion. Nevertheless, we determine there
is sufficient documentation in the record to render a decision, even in the absence of this motion.
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The AJ found finding the following pertinent undisputed facts were established during the
investigation of the formal complaint:

In June 1998, Complainant was employed by the Agency’s Internal Revenue Services in the
Student Employment Program, in a temporary accepted service position.

On October 5, 2016, FINCEN posted a vacancy announcement for the position of Director, Office
of Special Measures. Complainant applied for the subject position.

FINCEN has a partnership with the Agency’s Bureau of the Fiscal Service (BFS), Administrative
Resource Center (ARC) to provide certain personnel services to its organization. ARC’s
responsibilities include advertising vacancies, accepting and handling applications, and extending
job offers.

The vacancy announcement was a merit promotion announcement and was open to status
candidates only. In order for an applicant to be deemed eligible to apply for the subject position,
the applicant must provide documentation to prove that he or she is a status candidate as outlined
in the announcement.

The vacancy announcement defined status candidates as U.S. citizens who are, one, within the
local commuting area and are status eligible, Career Transition Assistance Plan
(CTAP)/Interagency Career Transition Assistance Plan (ICTAP) eligible, eligible for special
hiring authorities.

A “status eligible” is defined as a current federal civilian employee in the competitive service on
a permanent career or career-conditional appointment or a “reinstatement eligible.” A
“reinstatement eligible” refers to those individuals who previously held a career or career-
conditional appointment in the competitive service.

Applicants who applied for the subject position as status eligible, either as a current federal
employee or as a reinstatement eligible, were required to show competitive service status by
submitting a SF-50 “Notification of Personnel Action” that documented employment in the
competitive services on a career or career-conditional appointment.

The vacancy announcement stated “You must submit a copy of your SF-50, Notification of
Personnel Action, which shows your current or most recent grade and competitive service status.
The “position occupied block” on the SF-50 should show a ‘one’ and your tenure block should
show a ‘one’ or ‘two.’”

The SF-50 of a status eligible will show a “1”, competitive service, in Block 34, and must show
either a “1” or “2”, in career or career-conditional appointment in Block 24.

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Complainant did not claim eligibility under any authority other than reinstatement eligibility when
she applied for the Director, Office of Special Measures. As part of the application process,
Complainant was required to answer questions regarding eligibility.

The record reflects when asked the following questions: are you a current federal employee, a
current federal employee serving under a Veterans’ Recruitment Appointment, eligible for an
excepted appointment under the Federal Employment for persons with disabilities, and eligible for
a noncompetitive appointment under a special appointing authority, Complainant answered “No”
to all of these questions.

Complainant was also asked for displaced/surplus employee information, she responded “not
applicable.”

The SF-50, dated June 29, 1998, submitted by Complainant was for a temporary appointment June
1998 to August 1998 and showed a “two, excepted service, for Block 34, position occupied, and a
zero, none, for Block 24, tenure.” The AJ determined that Complainant’s SF-50 did not have the
requisite codes for demonstrating status eligibility as defined by the Agency and in the
announcement.

The AJ noted that Complainant asserted that the IRS misclassified her temporary excepted service
appointment. Specifically, Complainant stated that she was, or should have been, converted to a
career-conditional appointment based on language in the Federal Register Volume 59, and the
Executive Order 13162 signed by President Obama on December 27, 2010. However, the AJ
noted that both the IRS and the Office of Personnel Management reviewed Complainant’s
personnel records and determined that her records were correct and her appointment was not
misclassified.

Agency management chose the selectee (Caucasian, white male) for the subject position. They
stated that the selectee was both eligible and best qualified for the subject position. In his SF-50,
the selectee demonstrated that he was status eligible “because box 24 under the heading of tenure
has a one indicating a permanent appointment, and Box 34 has a one indicating appointment to the
competitive service.”

The Human Resources (HR) Specialist (Caucasian, white female) was the deciding official finding
that Complainant was not eligible to be considered for the Director, Office of Special Measures
position. The HR Specialist noted in her SF-50, Complainant indicated excepted for position
occupied “2” and the tenure a “0.”

The AJ explained that a “2” in block 34 of the SF-50 indicates the individual is in the excepted
service. The AJ stated, however, the excepted service does not follow the same hiring guidelines
as the competitive service and “therefore excepted service employees cannot be treated the same
as competitive service employees for hiring purposes. In short, this is because they haven’t
competed for their excepted service position following 5 CFR 330 and 332 for the competitive
service.”
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The HR Specialist explained that a “0” in block 24 of the SF50 indicates the individual “is serving
under an indefinite appointment. In this type of appointment, there is no expectation of ever
gaining career tenure. These are temporary or time limited appointments.”

Further, the HR Specialist stated that Complainant’s SF-50 was under the Student Temporary
Employment Program (STEP) which was less than one year and “did not have option for non-
competitive eligibility. The HR Specialist stated that the STEP program that Complainant was in
“was not eligible for non-competitive conversion and she did not provide any additional SF-50s
showing eligibility for a competitive appointment.”

Moreover, the HR Specialist stated that during the selection process she was not aware of
Complainant’s race, sex or color.

Based on this evidence, the AJ concluded the responsible management officials articulated
legitimate, non-discriminatory reasons for the selection decisions made, which Complainant failed
to prove was pretext masking discriminatory animus.

Here, the undisputed facts fully support the AJ’s determination that the selecting officials clearly
articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a
preponderance of the evidence, that these proffered reasons were a pretext designed to mask race,
sex or color discrimination.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.3

3 On appeal, Complainant does not challenge the December 2, 2016 partial dismissal issued by the
agency regarding two other claims (that she was discriminated against on the bases of race, sex
and color when she was classified as a temporary employee under the Student Temporary
Employment Program and was subjected to retaliation for whistleblowing activity). Therefore, we
have not addressed these issues in our decision.

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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. 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.

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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

April 17, 2019
Date