Allegra P.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120170774 (E.E.O.C. Oct. 18, 2018)

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

Allegra P.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120170774
Hearing No. 480-2013-00603X
Agency No. HSICE224422012

DECISION

On December 19, 2016, Complainant 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
November 27, 2016, final order concerning her equal employment opportunity (EEO) complaint
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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the AJ’s issuance of a decision without a hearing was
appropriate; and (2) whether Complainant established that the Agency discriminated against her
on the bases of national origin (Hispanic), sex (female), and reprisal for prior protected EEO
activity when:

1. On May 9, 2012, she was not selected for the position of Assistant Special Agent in
Charge (ASAC), Calexico, California, GS-1811-15; and
2. On April 16, 2012, she was removed as Acting ASAC, Calexico, and denied further
acting opportunities.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Group Supervisor
GS14 at the Agency’s U.S. Department of Homeland Security facility in Calexico, California. In
1998, Complainant began work as a criminal investigator for the Agency. She had various
reassignments, including one in 2001 to the Agency’s facility in Calexico, California. In 2004,
the Agency promoted her to a GS-14 Group Supervisor position in Calexico, a position she held
at all times relevant to this matter. While serving in the Group Supervisor position, she received
positive performance reviews and multiple rewards.

Whenever Complainant’s supervisor (S1) – who was the Assistant Special Agent in Charge
(ASAC) in Calexico – was on leave, the supervisor appointed her to serve as the Acting ASAC.
He chose Complainant for this acting role “due to her seniority, experience, management style,
continuity, and good judgment,” and because she “had the ability to work with all law
enforcement agencies.” Complainant stated that, for many years, her second-line supervisor, the
Deputy SAC (S2) has taken almost every opportunity to reprimand, scold, and minimize
Complainant. Complainant filed three prior EEO complaints against S2.

On March 7, 2012, Complainant applied for a vacant GS-15, ASAC position at the Calexico
facility. After receiving automatically generated emails from the Agency, including one that
Complainant found upsetting because she was notified that she was not qualified, Complainant
was interviewed for the ASAC position.

For the interviews, the Special Agent in Charge (S3) appointed three panelists who interviewed
Complainant and six other candidates. Complainant was rated much lower than C1 (male,
Hispanic) who became the selectee for the position.

In another automatically generated email, on May 9, 2012, the Agency notified Complainant that
she was not selected for the position. Complainant felt she should have gotten the job because
she had more supervisory experience, more investigative experience, and a more varied
investigative background. She alleged that the Agency discriminated against her based on her
national origin and sex; that S3 had demonstrated animus towards her on other occasions; and
that he was involved in the selection process. Therefore, the Agency’s decision was in
retaliation for her prior EEO activity. Complainant added that two of the three panelists had
knowledge of her prior protected EEO activity.

S3 stated that he chose the selectee because the selectee was the highest ranked candidate, he
was already in a GS-15 position, he served in leadership positions in headquarters for 2.5 years,
and his responses focused on teamwork and communication. He further stated that he did not
select Complainant because she was ranked fifth by the panelists, she lacked headquarters’
experience, and she had no experience running an office in a permanent position. The Agency
indicated that Complainant’s prior EEO activity played no role in the selection decision. The
record indicated that the panelists submitted their interview notes to S3, who was the selecting
official. S3 reviewed those interview notes from all three panelists before deciding.
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The record also indicated that S3 had made 14 selections in the prior two years. Of those 14
selections, six selectees were female (including one female ASAC in another office), and two
selectees were Hispanic, in addition to the selectee in the instant matter.

Complainant alleged that, on April 16, 2012, three days after S1 retired, S3 removed her Acting
ASAC duties. Complainant stated that prior to her most recent complaint to S1, S3 had decided
on a succession plan that would include, among other arrangements, having someone from the
San Diego office travel to the Calexico Office until the position was filled. Complainant alleged
this plan deprived her of further Acting SAC opportunities. She maintained that she was treated
less favorably because she is a Hispanic female, and that a less qualified male Hispanic Program
Manager was allowed to be the Acting ASAC in the absence of S2 or S3.

S3 stated that he wanted himself and other managers unfamiliar with the Calexico office to have
experience there while the position remained open.

On July 30, 2012, Complainant filed the instant EEO complaint alleging discrimination as set
forth above. At the conclusion of the investigation, the Agency provided Complainant with a
copy of the report of investigation and notice of her 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 granted the Agency’s January 7,
2014, motion for a decision without a hearing and issued a decision without a hearing on
September 15, 2016. The Agency subsequently issued a final order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant, among other things, contends she was subjected to disparate treatment based on
her national origin, sex, and prior EEO activity when she was not selected for the ASAC
position; and that she was singled out and discriminated against based on her protected classes
when she was removed as Acting ASAC and denied further acting opportunities. Complainant
asserts that the AJ erred in granting summary judgment in favor of the Agency; and that an
evidentiary hearing is necessary to resolve her claims.

The Agency argues that Complainant did not substantiate her claims; and that the AJ did not err
in granting summary judgment in its favor.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), Ch. 9, § VI.B (Aug. 5, 2015) (providing that an AJ’s determination to issue a decision
without a hearing, and the decision itself, will both be reviewed de novo).
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This essentially means that we should look at this case with fresh eyes. In other words, we are
free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions
and legal analysis – including on the ultimate fact of whether intentional discrimination occurred,
and on the legal issue of whether any federal employment discrimination statute was violated.
See EEO MD-110, Ch. 9, § VI.A. (explaining that the de novo standard of review “requires that
the Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that the Commission “review the documents, statements, and
testimony of record, including any timely and relevant submissions of the parties, and . . . issue
its decision based on the Commission’s own assessment of the record and its interpretation of the
law”).

ANALYSIS AND FINDINGS

We must first 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. 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. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep’t of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one
party without holding a hearing unless he or she ensures that the party opposing the ruling is
given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive
statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a
statement, and (4) the chance to engage in discovery before responding, if necessary. According
to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing
summary judgment] has not had the opportunity to discover information that is essential to his
opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the
administrative judge must enable the parties to engage in the amount of discovery necessary to
properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2)
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(suggesting that an administrative judge could order discovery, if necessary, after receiving an
opposition to a motion for a decision without a hearing).

Upon review of the record, we find that there are no genuine issues of material fact presented
here. The record has been adequately developed, Complainant was given ample notice of the
Agency’s motion for a decision without a hearing, she was given a comprehensive statement of
the allegedly undisputed material facts, she was given the opportunity to respond to such a
statement, and she was given the chance to engage in discovery before responding, if necessary.
We find that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not
find in her favor, as explained below. Therefore, we find that the AJ’s issuance of a decision
without a hearing was appropriate.

Disparate Treatment

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S.
at 804 n.14. 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). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Upon review of the record, we find that the Agency did not subject Complainant to disparate
treatment on the bases of national origin, sex or reprisal for prior protected EEO activity when
she was not selected for the Assistant Special Agent in Charge, GS-15, position for which she
applied, and when she was removed as Acting ASAC and denied further acting opportunities.

Assuming, arguendo, that Complainant established a prima facie case of national origin, sex, and
reprisal discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons
for its actions. Although Complainant was qualified for the position as indicated by her
experience as Acting ASAC, as well as S1’s positive statements regarding her abilities and
leadership skills, S3 maintained that the selectee was more qualified, however, because of his
work in management at other locations in a GS-15 position, and that he had demonstrated more
of the leadership, communication skills and experience the Agency sought. Complainant did not
establish that her qualifications were plainly superior to those of the selectee. See Wasser v.
Dep’t of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d
1037, 1048 (10th Cir. 1981).

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Complainant alleged she was not selected because she is a Hispanic female with prior EEO
activity; and that the selectee is male without prior EEO activity. She also asserted that two of
the panelists and S3 were aware of her prior EEO activity, and that their awareness as well as
S3’s involvement in the process played a role in the Agency selection decision. However, as the
record indicates the selectee is also Hispanic; and there is no evidence that prior EEO activity or
lack thereof of the candidates played any role in the final determination.

In an effort to show pretext, Complainant maintained that she was treated less favorably than
other supervisors because of her protected classes. She cites to several events including not
being allowed to represent her office when the Attorney General was visiting; being removed as
Acting ASAC after S1 retired, and not being provided future acting opportunities. However,
Complainant does not identify any comparator of a different national origin, sex or lack of prior
EEO activity who received more favorable treatment than she did. Regarding the succession
plan, S3 indicated that he wanted himself and other managers unfamiliar with the Calexico office
to have experience there while the position remained open. Complainant did not establish by a
preponderance of the evidence that this reason was a pretext. The Commission has long held
that an Agency has broad discretion to set policies and carry out personnel decisions, and should
not be second-guessed by the reviewing authority absent evidence of unlawful motivation.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the
Treasury, EEOC Request Mo. 05940906 (January 16, 1997).

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 final order finding that Complainant
did not establish discrimination as alleged.

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),
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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.
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.
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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

October 18, 2018
Date