Alex W.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120171912 (E.E.O.C. Nov. 20, 2018)

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

Alex W.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120171912

Hearing No. 410-2016-00244X

Agency No. HSCIS242412015

DECISION

On May 5, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from a decision by
an Equal Employment Opportunity Commission Administrative Judge (AJ), concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of 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

At the time of events giving rise to this complaint, Complainant was an applicant for the position
of Community Relations Officer at the Agency’s Office of Communications, U.S. Citizenship
and Immigration Services facility, in Washington, DC.

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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On August 11, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of disability2 (Post Traumatic Stress Disorder) and age
(72) when:

1. On June 23, 2015, Complainant learned that he was not selected for the
position of Community Relations Officer (CRO) advertised under
Vacancy Announcement CIS-1297888.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 18,
2016 motion for a decision without a hearing and issued a decision in favor of the Agency by
summary judgment on March 13, 2017.

Specifically, the AJ initially found that Complainant failed to establish a prima facie case
because he did not show that Agency officials were aware of his age or his disability. The AJ
further found that, assuming Complainant established a prima facie case, Agency officials
articulated a legitimate, nondiscriminatory reason for their action, namely that selection for the
position at issue was made from a second job announcement that was open to current Agency
employees only, instead of the external announcement under which Complainant applied. The AJ
further found that Complainant failed to stablish that such a reason was a pretext.

When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision,
the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
The instant appeal followed.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this 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.

2 For purposes of this decision the Commission assumes without finding that complainant is an
individual with a disability. 29 C.F.R. § 1630.2(g)(1).
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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, issuing a
decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

This established order of analysis 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 complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that
Complainant established his prima facie case of discrimination.

We next find that the Agency articulated legitimate non-discriminatory reasons for its action.
The record shows that there were at least two job postings, one for internal candidates and one
for external candidates. The record further shows that Complainant applied under the external
posting. Management officials involved in the selection process averred that only candidates who
applied under the internal job posting were interviewed and selected. Those who applied under
the external posting, including Complainant, were not interviewed or selected. The selecting
officials (S1: no disability, 50 years old; S2, no disability, 38 years old) both averred that they
were unaware of Complainant’s age or disability.

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The Agency having articulated a legitimate non discriminatory reason for its action, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reason was not its true reason, but was a pretext for discrimination. See Hicks; Burdine;
McDonnell Douglas.

Following a review of the record, we find that Complainant has failed to meet this burden.
Complainant submitted a rebuttal statement averring that:

I’m certain that I did not see the [internal] announcement when I saw the
announcement I used to apply for the position. It seems that publishing two
similar announcements simultaneously, as [sic] deceptive and a waste of
government money, especially since the agency apparently had no intention of
hiring from the outside. And, despite all the publicity about hiring vets, not one
vet was hired for one of the seven positions filled.

We note, however, that Complainant does not deny that the selections were made from the
internal posting, not the external one under which he applied. While Complainant may disagree
with the wisdom of issuing more than one posting, that does not establish that the Agency’s
actions were based on age or disability. As for Complainant’s reference to veteran’s preference,
we note that employment discrimination against veterans is not covered by the rules and
regulations governing this Commission. Complainant further argues that it is an “intriguing
element” that different Agency employees involved in the selection process gave different
answers when asked how many candidates were hired for the position, but, again, this does not
establish the selections were discriminatory.

On appeal, Complainant maintains that the Agency made three job announcements: the first,
external announcement, which is the one Complainant applied under; a second internal
announcement; and a third external one. Complainant further maintains that when he made
inquiries about the third announcement:

[I]t was immediately closed and replaced by another announcement also for a
Community Relations Officer but altering the working conditions among other
changes. . . .. Regardless, the complainant is certain that management intended to
honor the first announcement made to the Public [sic] applicants. However, when
complainant’s name showed up as a candidate on the List of Eligibles it became
apparent that someone in management did not want him hired and immediately
and arbitrarily closed the announcement. To obscure their unlawful act,
management immediately requested the release of a new announcement targeting
[internal] Applicants only. In view of this action, one can only infer that someone
in management who knows the complainant did not want him hired.

While Complainant may sincerely believe such a sequence of events, he has not provided
evidence establishing that events occurred in the way he describes and his conclusion that
management cancelled the first posting once they saw Complainant’s name is pure speculation.
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Nor has Complainant shown that his qualifications, while impressive, were plainly superior to
those of the successful candidates. Finally, we find that Complainant has not shown the presence
of a material issue of fact.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not met his burden of establishing,
by a preponderance of the evidence, that discrimination occurred, and we AFFIRM the Agency’s
final order.

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 (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.
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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. 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

November 20, 2018
Date