0220180004
06-05-2018
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Al W.,1
Grievant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0220180004
Agency No. HS-CBP-22943-2012
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts Grievant's appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 11, 2013 Step 3 grievance decision concerning his claim of equal employment opportunity (EEO) discrimination in violation of 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 an Import Specialist, GS-1889-11. at the Agency's Los Angeles/Long Beach Seaport for the Trade Compliance Branch in Long Beach, California.
On September 21, 2012, Grievant filed a grievance alleging that the Agency discriminated against him on the bases of age (52) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 when, on July 11, 2012, Grievant learned that he was not selected for the position of Senior Import Specialist, GS-1889-12, advertised under Vacancy Announcement Number MHCMP-633403-KR.
On or about March 6, 2013, the Agency transmitted a final Step 3 grievance decision, dated February 11, 2013, to Grievant, finding no discrimination in violation of the ADEA.
This appeal followed.
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 Grievant 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 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
For purposes of analysis, we assume Grievant has established his prima facie case of discrimination based on age and unlawful retaliation. Upon review of the record, we find that the responsible management officials have articulated legitimate, nondiscriminatory reasons for the action at issue. A review of management's affidavits and documentation provided indicates that Grievant was one of ten individuals who applied and was considered for the position in question. The record shows that Grievant and the other applicants were interviewed by two panelists ("Panelists") (49 years old and 47 years old). The Panelists provided their notes from the interviews as well as their scoring sheets for each of the seven questions posed to each of the applicants. Based on the combined scores from the Panelists, the applicants were ranked. The Panelists prepared a rating matrix along with justifications for their recommendations of the top five-ranked applicants. Grievant was not ranked among these top five. The Panelists indicated they were not particularly impressed by Grievant's interview performance, and noted that he was unable to complete the interview questions in the time allotted. Based on his interview performance, the Panelists did not recommend Grievant for selection for one of the five positions. In light of this evidence, we conclude that the Agency has met its burden of articulating legitimate, non-discriminatory reasons for its decision.
As such, we turn to Grievant to prove, by a preponderance of the evidence, that the Agency's stated reasons for his non-selection were a pretext designed to mask age discrimination and/or retaliatory animus. Upon review, we find that Grievant has failed to do so. Grievant merely asserted without evidence that management wanted to punish him and that the Agency does not promote people over the age of 40. In addition, Grievant stated at the beginning of his interview that he had engaged in prior EEO activity to ensure that management was aware of his prior EEO activity. However, we determine that Grievant provided no evidence that the Agency's decision was based on his age and/or prior EEO activity. In sum, we conclude that Grievant has not shown that he was subjected to discrimination based on age or in retaliation for his prior EEO activity.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, the Agency's Step 3 Grievance decision finding no unlawful age discrimination and/or retaliation under ADEA has been established is AFFIRMED.
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. 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 5, 2018
__________________
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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