0120091789
08-26-2009
Alaba O. Oluyomi, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Alaba O. Oluyomi,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120091789
Agency No. HS-07-CIS-002381
Hearing No. 520-2008-00433X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's appeal from the agency's February 24, 2009 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.
Complainant, an Adjudications Officer, GS-12, at the agency's Citizenship and Immigration Services in New York, New York, claimed that the agency discriminated against him on the bases of race (unspecified), national origin (Nigerian), and color (black) when:
(1) on September 14, 2007, he was not selected for the position of Senior Adjudication Officer (Temporary), GS-1801-13, in the New York Field Office of U.S. Citizenship and Immigration Services, advertised under Vacancy Announcement No. CIS-137951-BUR; and
(2) on September 20, 2007, he was not selected for the position of Adjudication Officer (Policy), GS-1801-13, in the Office of Regulations and Product Management Division, in Washington, D.C., advertised under Vacancy Announcement No. CIS-PHJN-143628-RPM.
Following the investigation into the formal complaint, complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 12, 2009, the AJ issued a summary judgment decision in favor of the agency. On February 24, 2009, the agency fully implemented the AJ's decision in its final order.
The AJ found that complainant did not show by a preponderance of the evidence that he was discriminated against on the bases of race, national origin and color. Regarding claim (1), the AJ found that one of the six recommending officials (RO1) stated that the recommending officials were broken up into three teams of two managers each. RO1 stated "when the interviews were assigned to the teams, we ensured that no candidate would be interviewed by a current or former permanent supervisor of the candidate in order to ensure complete objectivity during the interview process." RO1 stated that all candidates were asked the same questions and were asked to provide a writing sample during the interview. RO1 stated that following the interviews, the recommending officials met to discuss the results of the interviews and to complete their recommendations. RO1 stated that each team presented its strongest candidates and "then all other candidates were discussed since we had a few more recommendations to make (there were 8 positions to fill). We eventually came to a unanimous consensus on whom to recommend." RO1 stated that they recommended 8 candidates to the selecting official based on their extensive work experience.
Further, RO1 stated that the recommending officials did not recommend complainant because "the managers that interviewed him did not present him as a strong candidate and we all agreed that others (those recommended) were stronger candidates."
With respect to complainant's assertion that his veteran's preference should have been taken into consideration, RO1 stated "No. Since the rule of three was not applicable, we did not have to take into account the veteran's status." Complainant also argued that the "Rule of Three" should have been circumvented because a disabled veteran referred for a job position may never be skipped for a nonveteran who is competing for the same job and has a lower score. However, ROI disputed this assertion. RO1 stated "while there are jobs that require the rule of three and veterans not being skipped, for this position the rule of three was not required. The rule of 3 is applicable for some job lists (often entry level) whereby a person must be considered 3 times before being passed over and the list must be considered from the highest score (the top) without exception."
Another recommending official (RO2) stated "the most important factors for my recommendation were a well rounded adjudications experience in all facets of operations (both Adjustment of Status and Naturalization)." RO2 stated that he and the other recommending officials recommended eight candidates to the selecting official for consideration based on their extensive work experience. RO2 stated that he and a named recommending official (RO3) interviewed complainant. RO2 stated that while complainant was generally qualified as an Adjudication Officer, but not for the position of Senior Adjudication Officer, based on two reasons. Specifically, RO2 stated that complainant "has absolutely no experience in N-400 adjudications issues and I remain concerned about his communication skills in a customer service environment."
RO3 stated that she considered the amount and type of experience as a Senior Adjudication Officer when making the recommendation. Specifically, RO3 stated "one of the requirements for a Senior Adjudication "is to mentor and train other officers. They would therefore need to have the expertise that is needed in the section they were selected for. When making the decision for my section, I gave more weight to those who had experience in Citizenship." RO3 stated that she concurred with the other recommending officials concerning the 8 recommended candidates "based on my experience with them. They are excellent officers and it was because of my experience with them I requested that they be assigned to my unit."
RO3 stated that she did not recommend complainant for the subject position because he "did not have enough experience as an officer and did not interview well. He continually stressed his educational background and not his experience as an officer."
With respect to complainant's argument that most selectees have experience only in one aspect of Immigration and Nationality law and not in NTA, RO3 stated although all of the officers she interviewed did not have experience in NTA's, they had more experience than Complainant in other areas of Immigration and Nationality law. RO3 further stated that the Officers "also had more years as an Immigration Officer than the Complainant."
The selecting official (SO) stated that after receiving a recommendation list from the recommending officials, she selected the 8 candidates for the subject positions. With respect to complainant's argument that the "Rule of Three" should have been circumvented because a disabled veteran referred for a job position may never be skipped for a nonveteran who is competing for the same job and has a lower score, SO stated that there is no "Rule of Three" utilized in the Merit Promotion hiring process.
Regarding claim (2), the selecting official (SO1) stated that he asked three Branch Chiefs to review and recommend the candidates for the position of Adjudication Officer (Policy). SO1 stated that after receiving the recommendation list from the panel and reviewing the candidates' application packages, he selected the selectee for the subject position because she was best qualified. Specifically, SO1 stated that the selectee's work experience, education and other credentials made her the best qualified and that she "clearly demonstrated ability, skills, capacity, and competencies to engage in high-level development and management of immigration benefits adjudication projects and programs as well as in drafting regulations, policy guidance and other documents." SO1 stated that the other factors he gave extra weight to in making his selection was the selectee's "ability to manage projects under stress and primitive conditions and to empathize with victims of human rights violation."
SO1 stated that while complainant showed extensive experience, education and training in adjudication immigration applications and petitions at the GS-12 level, his strengths and emphasis "were in IT Related areas, such as database administration, information systems, networking technologies, records management, and computer science, among other things." SO1 further stated that complainant "was not as good of a match for the job of a manager of a trafficking victims protection program as the selectee." Furthermore, SO1 stated that during the selection process he had no knowledge of complainant's race, national origin and color.
With respect to complainant's argument that the "Rule of Three" should have been circumvented because a disabled veteran referred for a job position may never be skipped for a nonveteran who is competing for the same job and has a lower score, SO1 stated that complainant was referred by Human Resources as the highest rated applicant on the GS-13 list. SO1 stated, however, complainant was the only applicant considered by the Regulations and Product Management Division under the GS-13 list, because he was the top applicant referred on the GS-13 list. Notwithstanding, the complainant did not apply for consideration under the GS-12 list and, he did not qualify for the GS-14 list." SO1 stated that the "Rule of Three" applied to consideration of the top three referred applicants on the GS-12 and GS-14 lists, and that the selectee "was referred as one of the top three applicants on the GS-12 list. The Regulations and Product Management Division selected her from the GS-12 list based on her qualifications as the best suited for the job."
One of the three recommending officials (RO) stated that she and the other recommending officials reviewed the candidates' resumes to evaluation work experience, educational background and other credentials relative to the role and duties of an adjudications policy officer and the particular work assignments and program management needs of our office." RO stated that she recommended the selectee because of her extensive work experience. Specifically, RO stated that the selectee's work experience "in immigration, legal, and human rights affairs and her educational background in law, human rights clearly demonstrated her ability, skill, capacity, and competencies to engage in high-level development and management of immigration benefits adjudication programs, regulations, policies, and projects."
RO stated that she did not recommend complainant for the subject position because he had extensive work experience, education and training in the IT related areas "which were not highly commensurate with the regulatory, program, policy, and project development and management duties and responsibilities of an adjudications policy officer in the Regulations and Product Management Division."
RO stated that the selectee worked as an Asylum Officer with the U.S. Citizenship and immigration Services for 5 years in which she "adjudicated asylum applications by analyzing the facts, examining documentation, and researching and analyzing immigration law, country conditions, and related information. She also wrote determinations for all cases and based such determinations on legal analysis." RO also stated that as a practicing attorney for four years, the selectee conducted legal research and drafted memorandum pertaining to various legal issues. RO stated that complainant "had three and one-half years of experience adjudicating adjustment of status applications and writing denials based on legal research and interpretations of immigration law as a U.S. Citizenship and Immigration Services (USCIS) adjudications officers. RO further stated that complainant's experience as a Customs and Border Protection Officer and immigration inspector for one and a half years, as a Petty Officer with the Navy, his educational background and his training in information systems "were not decidedly commensurate with the highly complex legal, policy, and program research, writing, analysis, and synthesis responsibilities that an adjudications policy officer must perform." Furthermore, RO stated that she had no knowledge of complainant's race, national origin and color during the selection process.
The Human Resources Specialist (HR) stated that complainant applied for the GS-13 level and was found qualified with 10 points veteran's preference. HR further stated that complainant's name was at the top of the GS-13 certificate eligibles. HR stated that the selectee was selected from the GS-12 list, and that no selections were made from the GS-13 or GS-14 lists. HR stated that in regard to complainant's allegation that the "Rule of Three" should have been applied to the selection of the subject position, a preference eligible candidate "may not be passed over to select a nonpreference eligible candidate with a lower score on a certificate of eligibles. Since no one on the GS-13 level certificate was selected, the complainant was not passed over. A selection was made from the GS-12 level certificate, on which the Complainant's name did not appear because the Complainant indicated the lowest grade he/she would accept was a GS-13."
On appeal, complainant argues that the AJ erred in finding no discrimination. Specifically, complainant contends that the AJ failed to address his key contentions in his summary judgment. Complainant also argued that the AJ erred in his evaluation and interpretation of the duties of the two subject positions in question, especially the Senior Adjudications Officer position "thus, casting doubts on the sufficiency of multiple aspects of the AJ's summary decision." Complainant further contends that the motives behind management's deliberate misapplication of his veterans' preference in regard to the position of Adjudications Officer (Policy) position "were not substantively addressed by the AJ."
In response, the agency argues that the AJ's decision should be affirmed because the AJ's factual findings and legal conclusions are fully supported by the record.
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Complainant has offered no persuasive arguments on appeal regarding the AJ's decision to issue a decision without a hearing, or regarding the AJ's findings on the merits. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the agency's final order, because the Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that unlawful discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 26, 2009
__________________
Date
2
0120091789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120091789