Avery R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionMar 19, 20190120181399 (E.E.O.C. Mar. 19, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Avery R.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120181399 Hearing No. 540201600242x Agency No. HSICE248882015 DECISION On March 12, 2018, 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 February 19, 2018, final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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, Complainant worked as a Deportation Officer, GS-1801, Grade 12/6, at the Agency’s “DHS / ICE / Enforcement and Removal (ERO)” facility in Mesa, Arizona. On November 4, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), national origin (Guyanese), color (Black), age (54), and reprisal for prior protected EEO activity under Title VII when, on September 8, 2015, Complainant learned that two younger Caucasian American employees had been selected 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. 0120181399 2 for the Supervisory Detention and Deportation Officer (SDDO) position, for which Complainant had applied. The pertinent record reveals the following facts. Complainant identified his age as 54, his race as Black, and his national origin as Guyanese. He had prior known EEO activity against the named selecting officials (S1 and S2) in this matter. He named four alleged responsible management officials: the Unit Chief (S1), the Deputy Assistant Director (S2), a second Unit Chief (S3) and the Assistant Officer in Charge (S4). Complainant had four years of experience as a Supervisory Immigration Enforcement Agent (SIEA). In 2015, ICE underwent a reorganization and Complainant’s former position was eliminated. All SIEAs were transferred to Deportation Officer (DO) positions. Additionally, Complainant had been a supervisor with the Department of Justice from 2002 to 2011. Complainant had a total of 13 years of supervisory experience. On an unspecified date, Complainant received an email announcing a vacancy for the position of Supervisory Detention and Deportation Officer (SDDO), GS-1801-13. The vacancy was also posted under Vacancy Announcement 1376092, on USAJOBS.gov. Complainant applied for the position, although he said that S1 tried to dissuade him from applying. Complainant claims that S1 told him that he should not apply because he “lacked prosecutorial discretion” and would not qualify for the position. S1 denied making the statement. On June 12, 2015, the Human Resources (HR) Processing Center sent Complainant an email, to inform him that he met the position qualifications. The Agency established a panel to consider the applications. S1 stated that he and two others comprised the interview panel. S1 averred that the three-person interview panel evaluated and scored the resumes to create a matrix based on the vacancy’s required qualifications. The panel interviewed the candidates who scored at least a 24 on the matrix. One of the panel members stated that the successful candidate needed to possess Air Operations experience and that Complainant had been scored low because he did not meet that qualification. Another panelist said that the scoring was solely based on the candidate’s resume. The panel stated that Complainant did not submit a complete resume. His resume was badly written and he failed to identify his name, past job titles, or years of experience. The panel notated on the matrix whom they wanted to interview. The Special Assistant (57 years, Caucasian, white, American, witness EEO activity) stated that only the highest scoring resumes received an interview. Complainant’s score was 11.9 out of 30 from the panel. The selectee 1’s score was 24 out of 30 and the second selectee received a score of 25 out of 30. The panel noted that selectee 1 submitted a very detailed resume that clearly identified her contact information and her six years of experience with ICE. 0120181399 3 Management witnesses testified that a successful candidate needed to possess at least one-year of GS-12 experience, Air Operations experience, and have strong oral and written communication skills. Because the vacancy was an entry-level supervisor position, prior supervisory experience was not required. After the interviews were completed, the interview panel recommended the two highest scoring candidates for selection. The panel provided a selection memorandum to S2 on July 16, 2015. S2 then delivered it to S3, the Assistant Director, who was the selecting official. S3 made the selection based on the memorandum. The panel members denied having any knowledge of the selectee’s ages, national origins or prior EEO activities, but they acknowledged that they were aware of their races and colors. Both of the selectees were Caucasian, American and aged 41 years old and 49 years. Complainant was 54 years old. Coworker-1 was Caucasian, 41 years old, unknown color or national origin and unknown prior EEO activity. The second co-worker was Caucasian, 49 years old, unknown prior EEO activity, and unknown national origin. On September 8, 2015, Complainant received an office-wide email announcing that the two coworkers had been selected. Complainant was not provided a reason for his non-selection. Complainant asserts that his non-selection was based on his national origin, because management officials found his accent problematic.2 He averred that he had been removed from one assignment, because a colleague complained that they could not understand Complainant due to his accent. S2 stated that she did not find Complainant’s accent to be problematic. She also denied being involved in removing Complainant from being in charge of the weekly conference call, after others stated that they found Complainant difficult to understand. S2 confirmed, however, that strong communications skills were required for this vacancy, but she refused to provide examples of Complainant’s poor communication skills. Further, Complainant asserts that management preferred to hire younger applicants. He averred that in the last five years, management has only promoted one unnamed person older than age 50.3 Complainant also averred that he believed that he was not selected because he filed a 2 S2 averred that she did not find Complainant’s accent to be problematic. She also denied being involved in removing Complainant from being in charge of the weekly conference call. 3 The record shows that, during the period at issue, the unit had seven Deportation Officers in Mesa, Arizona. Six of the seven were over 40 years of age. Three were White. Three self- identified as Hispanic or Latino and one was African-American. 0120181399 4 complaint against S1 and S2, whom he believed was the selecting official. The actual selecting officer was the Assistant Director, who was not named as a RMO. 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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Agency Decision The Agency acknowledged that Complainant had four years of experience as a Supervisory Immigration Enforcement Agency, which involved the same job duties as the SDDO position and that he had thirteen years of supervisory experience. The Agency stated that Complainant was not interviewed because his resume was poorly written. His resume did not identify his past job titles or years of experience and failed to explain his experience. In contrast, the two selectees submitted very detailed resumes that clearly identified the necessary contact information and years of experience with ICE air operations. The Agency found that Complainant provided no probative evidence to rebut management’s reasons. The decision concluded that Complainant failed to prove by a preponderance of the evidence that management’s legitimate, nondiscriminatory reason was a pretext for discrimination. CONTENTIONS ON APPEAL Neither party submitted a brief on appeal. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 EEOC “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”). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant 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. See McDonnell Douglas, 411 U.S. at 802; Furnco 0120181399 5 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. See Texas Dep’t of Community 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 Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Complainant stated that he believed that he was wrongfully denied promotion because he had filed prior EEO complaints against S2 and mentioned S2 as the primary reason for the denial. He also claimed that management found his accent problematic and preferred younger employees with no prior EEO activity. Even assuming that Complainant established the elements of his prima facie claims, the Agency articulated a legitimate, non-discriminatory reason for its actions. The record shows Complainant was not interviewed because the Panel found his resume to be incomplete and poorly written. The panel did not refer Complainant’s name to the selecting official and the selections were based on the recommendations submitted to the selecting official. Complainant did not offer any evidence that these reasons were a pretext for unlawful discrimination and/or retaliation. We find, therefore, that Complainant failed to show by a preponderance of the evidence that the Agency discriminated against him, as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Decision. 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 tends 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), 0120181399 6 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. 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. 0120181399 7 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 March 19, 2019 Date Copy with citationCopy as parenthetical citation