EEOC Appeal 2020001607

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Archie D.,1
Complainant,
v.
Jelena McWilliams,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 2020001607
Hearing No. 450-2017-00183X
Agency No. FDICEO-16-006
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 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.
For the following reasons, the Commission AFFIRMS the Agency’s final order.2
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 On November 7, 2019, the EEOC Administrative Judge (AJ) assigned to this case issued a
decision granting summary judgment in favor of the Agency. 	The record indicates that the
Agency, upon receiving the AJ’s decision finding no discrimination, did not issue a final order
adopting or rejecting the AJ’s decision; consequently, by operation of our regulations, the AJ’s
decision became the Agency’s final order after 40 days of its receipt. See 29 C.F.R. § 1614.109(i).
Although Complainant’s appeal was filed before the expiration of the 40-day period, and therefore
was premature, we find that it is now ripe for review.

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BACKGROUND
During the relevant time, Complainant worked as an Asset Management Specialist in the Agency’s
Risk Share Asset Management (RSAM) facility located in Dallas, Texas. Complainant was the
only Asian male in the office along with sixteen white males, six white females, three black males
and three black females. With regard to the work of the unit, the record indicates that when a bank
failed, the Agency sold the failed bank’s deposits and loans to another bank (the assuming
institution). The Agency worked with the assuming institution to process shared loss claims and
to manage the acquired and covered assets pursuant to a Shared Loss Agreement (agreement).
On May 18, 2015, an Expression of Interest (EOI-2015-DFOB-005) was sent to Agency
employees soliciting applicants for a sixty-day temporary promotion detail assignment as a
Resolutions and Closings Manager, which was a supervisory position. The qualifications for the
solicitation included being either a RSAM Specialist and/or Resolutions & Receivership Specialist
at either the CG-13 or CG-14 level. Complainant applied and was referred to the selecting official,
SO1, along with eight other co-workers. C1, a white male who was also a CG-14 Asset
Management Specialist, and was older than Complainant, was selected. On October 8, 2015,
Complainant was notified that no additional selections would be made.
SO1 stated that C1 exercised greater responsibility than Complainant because his work involved
significantly larger and more complex situations and claim volumes, with more difficult and
challenging relationships, assets, and disputes to manage. In addition, C1 handled the most
problematic bank in the group at the time of the selection. In comparison, SO1 found that
Complainant’s experience was with smaller and less problematic agreements and assuming
institutions. Furthermore, SO1 was very familiar with the work of both Complainant and C1 from
having worked with both and also being the second level supervisor for both for a period of months.
C1, unlike Complainant, was considered a subject matter expert within the group, and was often
assigned to speak at compliance conferences, and was the head of the Delegated Approval Review
Committee and handled numerous review and training projects.
In July 2015, vacancy announcement 2015-DALEX-B0289 was advertised as an Agency only
solicitation for applicants for several RSAM Specialist, CG -14, term positions within the
Agency’s Dallas Office. The announcement indicated that qualified veterans would be referred
ahead of non-veterans to the selecting official, and that CG-13s and above were qualified to apply
for the position. Complainant applied and was referred to SO1, along with thirty-two others. Six
qualified applicants were veterans and all six were selected by SO1 in accordance with the
announcement. Fifteen total selections were made under vacancy announcement 2015-DALEX-
B0289 including the six qualified veterans on August 19, 2015. The fifteen selections included a
African-American female, an Asian (Indian) female and a Hispanic male. Most of the selectees
were older than Complainant (8 out of 15). On November 3, 2015, Complainant was notified that
he was not selected.

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SO1 stated that while Complainant had the knowledge, skills, abilities, and experience required
for the position, the other non-veteran selectees, generally speaking, managed more and larger
dollar value agreements with more complex and higher dollar assets that resulted in greater shared
loss claim volumes than what Complainant handled. In addition, SO1 discussed the applicants with
two of his unit managers who supervised many of them and had worked with all of them prior to
making his decision. Based on this input as well as having worked with all of the applicants,
including Complainant, SO1 determined that each of the selectees had demonstrated stronger
analytical, asset management and communication skills as well as judgment and problem-solving
skills than Complainant.
In August 2015, vacancy announcement 2015-DALEX-B0310 was advertised as an Agency only
solicitation for applicants for several RSAM Specialist, CG -13, term positions within the Dallas
Office. The announcement indicated that qualified veterans would be referred ahead of non-
veterans to the selecting official. Complainant applied and was referred to SO1, along with
seventeen others. Seven total selections were made under vacancy announcement 2015-DALEX-
B0310 on October 13, 2015. The seven selections included an African-American female. All the
selectees were older than Complainant. On October 29, 2015, Complainant was notified that he
was not selected.
SO1 found that Complainant and the selectees (and other qualified non-selectees) all had the
required knowledge, skills, abilities and experience of the position. As with the previous
announcement, he discussed the applicants with two of his unit managers who supervised many of
the applicants and had worked with all of them prior to making his decision. Based on this input
as well as having personally worked with all of the applicants, SO1 determined that each of the
selectees had demonstrated stronger analytical and communication skills as well as judgment and
problem-solving skills than Complainant. In addition, most of the selectees managed more and/or
larger dollar value agreements with more complex and higher dollar assets and shared loss claim
volumes than Complainant and two of the selectees had specialized data processing experience,
which SO1 found valuable for the positions.
In November 2015, vacancy announcement 2015-DALEX-B0352 was advertised as an Agency
only solicitation for applicants for one RSAM Specialist, CG -14, term position within the Dallas
Office. 	Complainant applied and was referred to SO1, along with eight other co-workers. One
selection was made under vacancy announcement 2015-DALEX-B0352 by SO1, on December 9,
2015. C2, the selectee, was a white female who was older than Complainant. On December 30,
2015, Complainant was notified that he was not selected under Announcement No. 2015-DALEX-
B0352.
According to SO1, both Complainant and C2 had the required skills and were both performing the
same role as the announced position at the time of the selection.

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SO1 determined that C2 had a much stronger asset management and workout background,
especially on the Single-Family Portfolio component. He stated that she possessed stronger and
more effective communication skills and was managing a considerable larger portfolio of assets -
24 agreements with approximately $ l.461 billion dollars of exposure versus Complainant’s
portfolio of 9 agreements with $235 million dollars in exposure. As a result, C2, he felt, managed
more complex and higher dollar assets and claim volumes than what Complainant handled. SO1
also determined that C2 managed one of the groups most problematic and complex single-family
portfolios as well.
The record indicates that SO1 was unaware of Complainant’s religion at the time of the non-
selections, or his exact age (he believed him to be early to mid-forties) at the time of the selections,
or any protected EEO activity by Complainant at the time of the selections.
On January 29, 2016, later amended on June 2, 2016, Complainant filed a formal complaint
alleging that he was discriminated against on the bases of race (Asian), color (brown), sex (male),
national origin (India), religion (Hindu), age (over 40), parental status (parent of five),3 and in
reprisal (present EEO activity) when:
1. On October 8, 2015, he learned he was not selected for a competitive detail to
the position of Risk Sharing Asset Management Monitoring Resolutions and
Closings Manager, advertised under announcement number EOI-2015-DFOB-005;
2. On October 8, 2015, he learned he was not selected for the position of RSAM
Specialist, CG-1101-14, advertised under Vacancy Announcement Number 2015-
DALEX-B0289;
3. On October 16, 2015, he learned he was not selected for the position of RSAM
Specialist, CG-1101-13, advertised under Vacancy Announcement Number 2015-
DALEX-B0310; and
4. On December 30, 2015, he learned he was not selected for the position of RSAM
Specialist, 	CG-1101-14, 	advertised 	under 	announcement 	number 	2015-
DALEXB0352.
At the conclusion of the investigations, 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. 	Complainant timely requested a hearing. 	As
noted above, the AJ, after a motion by the Agency granted summary judgment in the Agency’s
favor and issued a decision without a hearing.4 The instant appeal followed.
3 Parental status is not covered under the statutes enforced by the Commission and will not be
addressed in this decision.
4 Complainant’s opposition was found to have been untimely filed.

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The AJ found, among other things, that the record failed to establish a claim of reprisal
discrimination because the instant complaint was Complainant’s first encounter with the EEO
process. Likewise, with respect to age discrimination, the record established that most of selectees
for all four of the positions announcements were over 40 at time of their selections and most were
older than Complainant. The AJ also found that the record was devoid of any evidence to establish
that religion played any role in the selections. Complainant admitted that he did not even know the
religious practices of the selectees, nor did he proffer evidence to support his assertion that the
Agency did not wish to hire foreign born males that practiced Hinduism. The AJ noted the fact
that Complainant’s claim that the Agency did not wish to hire foreign born males that practice
Hinduism was directly contradicted by the undisputed fact that the Agency hired him on at least
two occasions.
Although the AJ found Complainant’s resume was impressive and his professional background
was varied she found that:
[w]hen compared to Complainant, most of the selectees worked similar numbers of
years with the Agency. In contrast to Complainant, his counterparts, male and
female, white and nonwhite, possessed a greater number of years of the specialized
experience the Agency sought. Each worked several years in private sector banking
and with mortgage companies, holding executive positions within the industry.
Complainant clearly did not. The Agency noted, and the record confirmed that the
selectees managed more difficult, higher value [agreements]. Complainant’s
[agreements] were also of high value but not in the billions of dollars as many of
the selectees’ [agreements] were. In sum, the evidence of record failed to establish
Complainant as the “clearly superior” candidate in any of the four selections at
issue. Viewing the evidence in a light most favorable to Complainant, this AJ finds
that at best, Complainant and the selectees were equally qualified.
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, Aug. 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).

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In order 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 has 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.
CONCLUSION
Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ
correctly determined that the preponderance of the evidence did not establish that Complainant
was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final
order.
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.

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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
June 24, 2020
Date