Bertie J.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120170806 (E.E.O.C. Nov. 29, 2018)

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

Bertie J.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120170806

Agency No. HSCBP245722015

DECISION

On November 30, 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
May 26, 2017, final decision 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.2 For the following reasons, the Commission
AFFIRMS the Agency’s final decision (FAD).

ISSUES PRESENTED

Whether Complainant established that she was discriminated against based on her race (Black),
and reprisal (prior EEO activity) when she was not selected for a Management and Program
Analyst position, and whether Complainant is entitled to sanctions based on the FAD being
untimely issued.
BACKGROUND

On February 27, 2015, Complainant, an employee of the Navy, applied for the position of
Management and Program Analyst with the Agency’s Customs and Border Protection, Office of

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.
2 At the time Complainant filed her appeal, the Agency had not yet issued its final decision.
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Field Operations, Mission Support Division facility in Ashburn, Virginia. The responsibilities of
the position were:

1. Reviewing, analyzing, and interpreting legislation, appropriations language, Office of
Management and Budget (OMB) directives, and DHS policy guidance pertaining to the
Agency’s budget;

2. Providing relevant policy and supporting information in preparation of budget defense
documents, briefing materials, testimony, and budget request highlights as well as
preparing responses to Congressional questions for the record and other inquires;

3. Analyzing and reporting on laws and regulations applicable to user fees and
reimbursable accounts. Providing analysis, advice, and recommendations on all aspects
of the budget and performance integration to Agency program officials and managers
and providing leadership in formulation performance integration, and presentation;

4. Drafting messages and preparing correspondence as required in response to technical
requests from internal and external stakeholders;

5. Drafting budget submission documents for normal formulation processes to DHS,
OMB and Congress and for out of calendar process such as supplemental requests for
information; reviewing new or proposed regulations, policies, orders, etc., to identify
impact on program project issues, and present recommendations for adoption,
implementation, mitigation, or change to supervisor.

Complainant was one of five (5) applicants determined to be the best qualified, and whose names
were referred to the selecting officials. However, the preparation of and transmission of the
Certificate and the candidates’ resumes for consideration took an extended amount of time. By
the time the information was provided, three of the four candidates had accepted other jobs.
Complainant remained available and interested in the position. According to the Program Manager
(PM), she and the Deputy Executive Director for Mission Support (DED) decided to re-advertise
the position in hopes that the Minneapolis Hiring Center (MHC) would send the new Certificate
to their office in a speedier manner, allowing a larger pool from which to select. The PM stated
that she never considered Complainant for an interview or selection because Complainant’s
resume was loaded with typographical errors and contained mixed use of verb tenses, which
indicated an inability to write or proofread. The PM stated that writing and proof-reading was
critical to the position. The record contained a copy of Complainant’s resume, which corroborated
the PM’s assertions that the document contained typographical errors and mixed use of verb tenses.

Upon learning of the Agency’s decision, Complainant filed the instant complaint. Complainant
averred that she was not selected because of her race and her prior EEO activity. Complainant
further articulated her belief that “a reference check was conducted, and a Department of Navy
employee told an Agency official that she was black with a history of EEO complaints, and should
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not be hired.” Complainant provided no evidence to support this assertion. The record revealed
that neither of Complainant’s two Navy supervisors were contacted regarding Complainant.

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. On April 15, 2016, Complainant requested a final
decision. In accordance with Complainant’s request, the Agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged. This appeal followed.

CONTENTIONS ON APPEAL

Complainant, in pertinent part, argued that the Commission should issue a default judgment in her
failure due to the Agency’s violation of the Commission’s regulation requiring that final decisions
be issued within sixty-days of the request. Subsequently, Complainant filed a motion for sanctions
regarding the Agency’s untimely issuance of the FAD. Complainant also averred that the
Agency’s explanation for her non-selection was a “lie,” and that the Agency did not issue a FAD
in order to hide the discrimination that occurred.

The Agency maintained, among other things, that its tardiness was not a sufficient reason for
issuing a default judgment, and that Complainant had not suffered harm.

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”).

Disparate Treatment Claim

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff’d 545 F.2d 222 (1st Cir.
1976) (applying McDonnell Douglas to retaliation cases). First, Complainant 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community Affairs v.
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Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by
a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.

The Agency articulated a legitimate, non-discriminatory reason for its selection decision. A review
of Complainant’s resume revealed typographical errors and mixed use of verb tenses, which
indicated to the reviewers that Complainant was unable to write or proofread adequately, skills
that would be needed in the position. Complainant provided no persuasive evidence indicating that
the reasons articulated by the Agency were pretext for discrimination, nor do we find that
discriminatory animus played any role in this matter. Accordingly, we find that Complainant did
not establish discrimination.

Violation of EEOC’s Part 1614 Regulation

The record indicates that Complainant requested a final decision on April 15, 2016. EEOC
Regulation 29 C.F.R. § 1614.110(b) provides that “[t]he agency shall issue the final decision
within 60 days of receiving notification that a complainant has requested an immediate decision
from the agency . . ..” Here the final decision was not issued until June 1, 2017, more than a year
after the request. The Agency has not provided a valid reason for the late issuance of the final
decision. According to the Agency, the FAD was approved for issuance in January 2017; however,
due to an oversight, it did not issue the FAD until June 1, 2017. The Agency maintained that, “[a]s
soon as the Agency discovered the oversight, it took immediate action.” We disagree with the
Agency’s position. At the outset, we note that Complainant requested a final decision in April
2016; therefore, a decision was due in June 2016. According to the Agency, a decision was not
even approved until January 2017. Although aware that Complainant had filed appeal in
November 2016, prematurely, the Agency responded with a Motion to Dismiss in March 2017,
but did not issue its decision, which as it indicated was already approved in January, until June 1,
2017. Therefore, the Commission finds that the Agency did not comply with its obligation to issue
a final decision in accordance with the time frames set forth at 29 C.F.R. § 1614.110(b). As noted
by the Commission in Mach v. Dep’t of Defense, EEOC Appeal No. 0120080658 (Nov. 30, 2010),
“the procedures contained in the Commission’s regulations are no more or no less than the
necessary means to eliminate unlawful employment discrimination in Federal employment.”
Accordingly, we find that a sanction in this case is appropriate.

Sanctions

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the
non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv.,
EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable
remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each
situation by applying the least severe sanction necessary to respond to a party’s failure to show
good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans
Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in
“tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature
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of the non-compliance, and the justification presented by the non-complying party; 2) the
prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from
the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Defense,
EEOC Appeal No. 07A50030 (Mar. 1, 2007).

In the case at hand, we find that the Agency failed to comply with EEOC’s regulations in this case,
and did not show good cause for its noncompliance, when it issued its untimely final decision. We
also note that, regarding the fourth factor, the effect on the integrity of the EEO process should not
be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No.
0720050055 (Dec. 24, 2009). “Protecting the integrity of the 29 C.F.R. Part 1614 process is central
to the Commission’s ability to carry out its charge of eradicating discrimination in the federal
sector.” Id. The Commission must ensure that all parties abide by its regulations and orders.

Based on the specific facts of this case, we find that the most appropriate sanction to address the
Agency’s conduct is to order the Agency to: (1) provide training to its EEO personnel who failed
to comply with our regulatory timeframes; (2) consider taking disciplinary action against these
EEO personnel; and to (3) pay attorney fees, if any, incurred by Complainant for filing the appeal
in this case. Our decision to sanction the Agency in this matter will effectively emphasize to the
Agency the need to comply with the Commission’s regulations in a timely manner. Our sanctions
do not include a monetary award for Complainant, nor does it grant a default judgment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s FAD as indicated above. The Agency
shall comply with the ORDER below.

ORDER

Unless otherwise indicated, the Agency is ordered to complete the following remedial actions
within one hundred and twenty (120) days of the date this decision is issued:

1. The Agency shall provide training to its management officials, in the Office of
Civil Rights and Civil Liberties, regarding their responsibilities concerning case
processing.

2. The Agency shall consider taking appropriate disciplinary action against the
management officials in the Office of Civil Rights and Civil Liberties responsible
for the failure to comply with the Commission’s regulations in this case. The
Commission does not consider training to be disciplinary action. The Agency shall
report its decision to the Compliance Officer. If the Agency decides to take
disciplinary action, it shall identify the action taken. If the Agency decides not to
take disciplinary action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left the Agency’s
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employ, the Agency shall furnish documentation of their departure date(s).

3. As a sanction, the Agency, if applicable, shall provide Complainant attorney’s
fees for filing this appeal in accordance with the procedures set forth below in
Paragraph H.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Office of Civil Rights and Civil Liberties located in
Washington, DC copies of the attached notice. Copies of the notice, after being signed by the
Agency’s duly authorized representative, shall be posted both in hard copy and electronic
format by the Agency within 30 calendar days of the date this decision was issued, and shall
remain posted for 60 consecutive days, in conspicuous places, including all places where notices
to employees are customarily posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material. The original signed notice is to
be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of
the Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney’s fees in accordance
with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
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Complainant and his/her representative.

If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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 29, 2018
Date