0220140007
06-08-2016
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton M.,1
Grievant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0220140007
Agency No. HS-CBP-01235-2013
DECISION
On January 17, 2014, Grievant filed an appeal from the Agency's December 20, 2013, decision concerning his grievance 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 and Boarder Protection Import Specialist at the Agency's Long Beach Seaport facility in Los Angeles, California.
On July 12, 2013, the Union filed a grievance on behalf of Grievant alleging that the Agency discriminated against him on the bases of sex (male), age (52), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, when on March 29, 2013, he learned he was not selected for the position of Import Specialist, GS-1889-12, advertised under Job Opportunity Announcement (JOA): MHCMP-780572-MJH.
At the conclusion of the investigation, the Agency provided Grievant with a copy of the report of investigation on November 5, 2013. The Agency issued a Step 3 decision. The decision concluded that Grievant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that Management provided reasons for not selecting Grievant. The Recommending Official noted that the Selectee had the highest rating based on the application and interview questions. The Recommending Official noted deficiencies in Grievant's resume. As such, the Agency concluded that Grievant failed to demonstrate that he was subjected to unlawful retaliation or discrimination based on age and/or sex.
This appeal followed. Grievant provided a copy of the Union's statement in support of the grievance filed with the Agency in July 2013.
ANALYSIS AND FINDINGS
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, the Arbitrator, or the Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Grievant to prevail, he or she 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 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Grievant 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Grievant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its action. The Recommending Official noted that he reviewed the resumes of the candidates and interviews were conducted by the Interview Panels. Each candidate was then given points. The Selectee received a score of 63 out of 70 while Grievant received a score of 47. The Recommending Official noted problems with Grievant's resume. Based on a review of the record, we find that the Agency has articulated legitimate, nondiscriminatory reason for choosing the Selectee for the position in question.
We turn to Grievant to demonstrate that the Agency's reasons were pretext for discrimination. In his affidavit, the Grievant merely asserted that he was subjected to unlawful discrimination based on sex and age without providing any additional support for his assertion. He relies on his years of experience to establish that he should have been selected for the position in question. The Commission notes that number of years of experience, alone, is insufficient to establish that a candidate's qualifications are observably superior. See Kopkas v. U.S. Postal Serv., EEOC Appeal No. 0120112758 (Oct. 13, 2011).
As to his claim of unlawful retaliation, Grievant objected to one of the Interviewers noting that Grievant had named the Interviewer as the responsible management official in a prior EEO complaint. Grievant failed to show, beyond his assertion, that his prior EEO complaint played a part in the rating by one of the Interviewers. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. Therefore, we find that Grievant failed to show that the Agency's decision to select the Selectee constituted unlawful discrimination based on sex, age, and/or prior protected activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's grievance decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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. 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
June 8, 2016
__________________
Date
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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