EEOC Appeal 2020001616

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raleigh T.,1
Complainant,
v.
Jelena McWilliams,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 2020001616
Agency No. FDICEO-19-033
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated November 13, 2019, dismissing his complaint
of unlawful 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. 	Our review is de novo. 	Upon review, the
Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim.
BACKGROUND
On July 25, 2019, Complainant filed a formal complaint wherein he claimed that the Agency
discriminated against him on the basis of his race (African-American) when he was discouraged
from applying for a position at the Agency because he is a convicted felon.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) on the grounds of
failure to state a claim. 	The Agency stated that the statutory language barring it from hiring
convicted felons is clear. According to the Agency, since Complainant has a felony conviction,
he cannot perform any service on its behalf. The Agency stated that in accordance with a federal
statute it properly notified Complainant that applicants convicted of a felony cannot be employed
by the Agency. 	The Agency reasoned that the fact Complainant then chose not to apply for a
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.

2020001616	2
position with the Agency because he is a convicted felon does not constitute a claim upon which
relief can be granted.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency’s bar against employing individuals with felony
convictions has an adverse impact on African-Americans. Complainant states that he wanted to
apply for a position with the Agency but was denied by the prohibition against convicted felons.
Complainant also claims that he previously attempted to file an EEO complaint with the Agency’s
Office of Minority and Women Inclusion; however, he was subjected to reprisal when it informed
him that it did not receive a discrimination complaint he filed in May 2019.
In response, the Agency asserts that the instant complaint is nearly identical to one that
Complainant filed in 2011, wherein he claimed that he was discriminated against based on his race
when he was discouraged from applying for employment with the Agency because of its
mandatory bar against employing anyone with a felony conviction. 	The Agency argues that in
Complainant v. Federal Deposit Insurance Corp., EEOC Appeal No. 0120121806 (Aug. 31, 2012),
the Commission found that the complaint failed to state a claim due to the statutory prohibition
against the Agency employing anyone with a felony conviction. The Agency maintains that the
bar against employing individuals with a felony conviction is based on the Federal Deposit
Insurance Act and is not a policy or practice developed by the Agency. The Agency stated that
the statutory bar is part of the minimum standards of fitness for Agency employees and is mandated
by Congress. The Agency asserts that it does not have discretion to ignore the statute. With respect
to Complainant’s argument on appeal that he was retaliated against by the Agency’s Office of
Minority and Women Inclusion when it told him it did not receive the complaint he allegedly filed
in May 2019, the Agency states that Complainant did not allege reprisal prior to the instant appeal,
and thus any such claim is not properly before the Commission.
ANALYSIS AND FINDINGS
Initially, we note with regard to Complainant’s claim regarding a May 2019 complaint, the EEO
Counselor’s Report indicates that Complainant contacted the Agency on May 15, 2019 to initiate
the EEO process, which corresponds with the date of an affidavit Complainant submitted to the
Agency 	titled 	“Formal 	Complaint 	of 	Discrimination.” 	Following 	the 	counseling 	phase,
Complainant was issued a Notice of Right to File a Formal Complaint on June 14, 2019.
Complainant received the Notice on July 17, 2019 and filed the instant formal complaint on July
25, 2019. Thus, it appears Complainant is referring to his original submission to the Agency as
his May 2019 complaint which the Agency treated as his initial EEO Counselor contact.
Notwithstanding, Complainant did not raise reprisal as a basis in his formal complaint; therefore,
such a claim is not properly before us.

2020001616	3
Regarding the instant matter, in April 2012, the Commission issued guidance on arrest and
conviction records. In the guidance, the Commission advises that national data supports a finding
that criminal record exclusions in employment have a disparate impact on African-Americans and
Hispanics but explains that an employer can prove there was no disparate impact in its workplace.
The guidance, gives advice, among other things, on the handling of disparate impact cases. EEOC
Enforcement Guidance on the Consideration of Arrest and Conviction Records under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (April 25, 2012).
The Agency asserted that it is prohibited by statute from employing anyone convicted of a felony.
The Agency cites to 12 U.S.C. § 1822(f)(4). Pursuant to this statute the Agency promulgated 29
C.F.R. § 336.4, which sets out the minimum standards for appointment to a position with the
Agency. 	It provides that no person shall become employed on or after June 18, 1994, by the
Agency who has been convicted of a felony.
In Complainant v. Federal Deposit Insurance Corp., EEOC Appeal No. 0120121806 (Aug. 31,
2012), Scheidel v. Federal Deposit Insurance Corp., EEOC Appeal No. 0120111964 (Oct. 17,
2011); request denied, EEOC Request No. 0520120087 (April 17, 2012); and Norman v. Federal
Deposit Insurance Corp., EEOC Appeal No. 0120112899 (Oct. 17, 2011), the Commission found
that because the Agency was prohibited by federal statute 12 U.S.C. § 1822(f)(4) from employing
anyone with a felony conviction, claims about being discouraged or being dissuaded because of
this bar from applying for employment with the Agency failed to state a claim as a matter of law.
Therefore, we find that the instant complaint fails to state a claim.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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

2020001616	4
(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.

2020001616	5
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
September 10, 2020
Date