Agency.

Equal Employment Opportunity Commission

Nov 23, 2018

0220170010 (E.E.O.C. Nov. 23, 2018)

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

Lael G.,1
Grievant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0220170010

Agency No. HS-CBP-23867-2015

DECISION

On August 2, 2017, Grievant 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
July 6, 2017 decision concerning her grievant 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.

BACKGROUND

At the time of events giving rise to this complaint, Grievant worked as a Customs Border Patrol
Technician at the Agency’s New York Field Office, Newark Port of Entry facility in Newark,
New Jersey.

On August 5, 2015, Grievant filed a grievance alleging that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female), and age (63) when:

1. on March 20, 2015, Grievant learned that she was not selected for the position of
Entry Specialist, GS-1894-09/11, under Job Opportunity Announcement (JOA)
number MHCDE-12522581-AN;

1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when
the decision is published to non-parties and the Commission’s website.
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2. on March 20, 2015, she learned that she was not selected for the position of Entry
Specialist, GS-1894-09/11, under JOA number: MHCMP-1256342-MLM; and

3. on March 20, 2015, she learned that she was not selected for the position of Entry
Specialis4 GS-1894-07, under JOA number: MHCMP-1256637-MLM.

The Agency dismissed the grievance, citing 29 C.F.R. § 1614.107(a)(1), for failure to state a
claim. Grievant appealed the decision. In EEOC Appeal No. 0220160002 (Feb. 28, 2017), the
Commission reversed the Agency’s decision and remanded the matter for an investigation
regarding Grievant’s claims of discrimination in her grievance.

The Agency conducted an investigation in compliance with the Commission’s decision. At the
conclusion of the investigation, the Agency issued a decision on her grievance, concluding that
Grievant failed to prove that the Agency subjected her to discrimination as alleged.

As for the position listed in claim (1), the Agency indicated that there were two certificates of
eligible candidates for consideration issued for the posting. On one certificate, Grievant was not
listed for the vacancy in Newark because it was based on veteran’s preference, for which she did
not qualify. As for the second certificate, the Agency stated that the position was not located in
Newark, New Jersey. Therefore, Grievant’s name did not appear as she did not list areas for
consideration outside of Newark.

Regarding claim (2), the Agency found that there were four certificates of eligibility issued for
the position. Two were not for the Newark location and Grievant was not listed on those
certificates. A third certificate was issued, but no selection was made. As to the fourth certificate,
the Agency indicated that Grievant was listed for the consideration, but was not recommended
by the reviewing panel for selection based on its assessment of the relative qualifications of the
eight candidates. The recommendation was passed on to the selecting official, who accepted the
recommendation for selection.

Finally, as to claim (3), the Agency held that there were two certificates of eligibility issued for
the position. One of the certificates was for a position outside of Newark. Therefore, Grievant
was not listed for consideration. In the second certificate, the Agency determined that Grievant
was one of ten applicants considered eligible for the position in Newark. However, the Agency
made no selection for the position in question.

Based on this evidence, the Agency determined that Grievant had not proven that her race, sex
and/or age were factors in the positions at issue. Therefore, the Agency concluded that Grievant
failed to show she was subjected to discrimination as alleged in her grievance.

Grievant filed the instant appeal.

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ANALYSIS AND FINDINGS

The Commission has jurisdiction over appeals from grievance decisions in limited
circumstances. EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to
the Commission from a final decision of the agency, an arbitrator, or the Federal Labor Relations
Authority (FLRA) on a grievance when an issue of employment discrimination was raised in a
negotiated grievance procedure that permits such issues to be raised, but requires the
complainant to proceed on the discrimination claims under either the grievance process or the
EEO process, but not both. In these circumstances, the Commission will only review that portion
of the decision which pertains to the Grievant's employment discrimination claim, as it does not
have jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R.
§ 1614.301(a). Here, Grievant alleged, at least in part, that the Agency violated the terms of the
collective bargaining agreement when he was subjected to unlawful discrimination. Accordingly,
the Commission properly has jurisdiction over Grievant's appeal.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Grievant to prevail, he must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1973). 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).

Upon review of the record, we find that Grievant failed to establish a prima facie case by failing
to provide any evidence or facts that give rise to an inference of unlawful discrimination based
on her race, sex, and/or age. There is no indication that the reviewing panelists, those creating
certificates for consideration, or the Director were aware of her protected bases. Moreover, even
if she had, the Agency has articulated legitimate, non-retaliatory reasons for the actions at issue,
which Grievant has not proven, by a preponderance of the evidence, were a pretext designed to
mask the true discriminatory motivations. In reaching this conclusion, we again note that we are
only reviewing determinations concerning Title VII and ADEA claims, and not those concerning
an interpretation of or Grievant’s rights under the collective bargaining agreement or issues
regarding the Agency’s application of veteran’s preference.

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CONCLUSION

Therefore, after a careful review of the record, including Grievant’s contentions on appeal, the
Agency’s response, and arguments and evidence not specifically addressed in this decision, we
AFFIRM the Agency’s decision finding no discrimination in this matter.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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.
Grievant’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).
GRIEVANT’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.
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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 Grievant’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

November 23, 2018
Date