EEOC Appeal 2020001455

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nathaniel S.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Bureau of Public Debt),
Agency.
Appeal No. 2020001455
Hearing No. 530-2019-00263X
Agency No. BFS-18-0417-F
DECISION
On November 27, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 2, 2019 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., Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Pathways Student Intern (Technical
Accounting) at the Agency’s Payroll, Vendors, and Cards Branch, Transaction Management
Division, Office of Fiscal Accounting Operations in Parkersburg, West Virginia.
On July 12, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against him on the bases of disability, age (over 40), and in reprisal for prior
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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EEO activity (identified in the EEO Counseling Report as “BF-18-0074”) when, on April 4, 2018,
he was not converted from a Pathways Program Student Intern to permanent status.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter the AJ
issued a decision by summary judgment in favor of the Agency on September 16, 2019. 	The
Agency thereafter issued the instant final order implementing 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 a complainant to prevail, he
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).

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In concluding no discrimination was proven, the AJ found that the record developed during the
investigation established the following undisputed facts.
During the relevant period, Complainant was a Student Intern (Technical Accounting) at the
Agency’s Payroll, Vendors, and Cards Branch, Transaction Management Division, Office of Fiscal
Accounting Operations in Parkersburg, West Virginia.
Complainant identified his disabilities as diabetes and vision presbyopia.2
The responsible management officials explained that as a Pathways Student Intern conversion to
permanent status was not a given. Management determined that Complainant’s error rate was far
above an acceptable performance for his position, and that an offer of permanent employment was
dependent upon successfully performing the assigned duties listed in his position description.
The Supervisory Accountant (Manager) (over 40) was Complainant’s second-level manager. The
Manager explained that Complainant was not converted to a permanent status “because he failed
to meet the following job specific commitments as a Vendor Technician in Payroll, Vendors and
Cards Branch.” The Manager maintained during the rating period, a Vendor Technician can have
no more then 30 errors and “an error is defined as incorrect banking (routing or account), TIN,
Vendor Name, Full Address, Bank Account Name and Supplier Number. 	Only 1 error can be
given per supplier request. During the rating period, he said Complainant made 44 errors.
Another Supervisory Accountant (over 40) stated that during the relevant period she was
Complainant’s supervisor. She explained that Complainant was not converted to permanent status
from the Pathways Program where he was a student intern due to performance issues.
Complainant asserted that he was never advised that his conversion to permanent status would be
contingent on his performance as a student trainee. However, 	the supervisor asserted that
Complainant was made aware his conversion to permanent status “would be contingent on his
performance as an intern. This was stated in the Pathways agreement he signed. The complainant
was also provided commitments to meet during his intern and was made aware each time he made
an error.”
The AJ further noted Complainant claimed that a younger comparator also had a high error rate,
but that he received preferential treatment. The Agency pointed out, however, that the comparator
was not a Pathways Student Intern and was not an appropriate comparator. She noted that in 2018,
the comparator was issued a Performance Counseling Memorandum dated June 14, 2018, by the
supervisor warning him of performance deficiencies relating to his error rate as a Vendor
Technician.
2 For purposes of this analysis, we assume for purposes of analysis only, without so finding, that
Complainant was an individual with a disability.

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The AJ noted that the comparator was not the same as Complainant because he was already a
permanent employee “but he was counseled when his performance dropped below the set error
rate standard.”
Moreover, the AJ stated “further providing evidence that Complainant was not discriminated
against is the fact that the Agency provided a detail for Complainant to another department so that
if he performed well there, and a position was open and funded, he could be employed there.
Complainant did perform well in the detail. 	However, it is undisputed that funding was not
available for the position.”
Here, the undisputed facts fully support the AJ’s determination that the responsible management
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 discrimination. Beyond his bare assertions, Complainant has simply provided no evidence
to support his claim that his treatment was the result of his disability, age, and prior protected
activity.
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment,
finding no discrimination.3
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
3 On appeal, Complainant does not challenge the August 7, 2018 partial dismissal issued by the
agency regarding two other claims 	Therefore, we have not addressed these issues in our decision.

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(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.

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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 23, 2020
Date