0120142133
09-13-2016
Chet L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chet L.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120142133
Hearing No. 540-2013-00099X
Agency No. HSCIS228642012
DECISION
On May 15, 2014, Complainant filed an appeal from the March 20, 2014 Decision by an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., after the Agency failed to issue a final order. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Immigration Services Officer at the Agency's Filed Operation Directorate, US Citizenship & Immigration Services facility in Salt Lake City, Utah.
On September 21, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic) and age (56) when:
1. On July 6, 2012, Complainant learned that he had not been selected for the position of Supervisory Immigration Services Officer.
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 AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 28, 2013, motion for a decision without a hearing and issued a decision without a hearing on March 20, 2014. Specifically, the AJ found that there was insufficient evidence to support an age or national origin case of discriminatory nonselection. The record does not show that the Agency issued a Final Order and in such cases the AJ's Decision becomes the final action of the Agency. 29 C.F.R. � 1614.109(i).
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. 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.
The Agency provided a legitimate non-discriminatory reason for its action when the recommending officials (RO1: non-Hispanic American, 54 years; RO2 non-Hispanic European/Caucasian, 33 years; RO3 non-Hispanic Irish origin, 62 years) averred that they recommended the Selectee (S: White, national origin not known, age 32 or 33) based on his interview responses wherein S received 104 points out of a possible maximum of 135 and Complainant received 88. See Report of Investigation (ROI), Exhibit F4, pp. 7-8 and Exhibit F5, pp.7-8. RO1 further averred that S was selected because he:
had the highest score of the seven candidates. [S] provided answers that showed insight to the skills that would be needed for the supervisor position. During his interview [S] demonstrated a commitment to quality of work and providing timely service to the officers he would supervisor [sic]. He stated that he wanted to help the officers be successful. . . . The other six candidates, including [Complainant] provided adequate responses to the interview questions. [S] had the highest score by a good margin over the other candidates.
ROI, Exhibit F4, pp. 7-8.
The Agency having articulated a legitimate non-discriminatory reason for its action, the burden returns to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reason was a sham or pretext, or otherwise show discrimination occurred. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Following a review of the record we find that Complainant has not met this burden. Nor has Complainant shown the presence of a material issue of fact. We note that in nonselection cases, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, an employer has the discretion to choose among equally qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981). A review of their respective qualifications, however, does not show that Complainant's qualifications, while impressive, are "demonstrably superior" to those of S. See Exhibits F14d & F14e.
Complainant and a number of his colleagues averred that RO1 had a history of giving S preferential treatment in the office compared to her treatment of other employees. See Exhibit F2a, pp. 11-13; Exhibit F7; Exhibit F8; Exhibit F9; Exhibit F11; Exhibit F12; Exhibit F13. On appeal, Complainant references these affidavits as evidence to support his claim of discrimination based on age and/or national origin. The AJ found that even "assuming this is correct and [RO1]'s [interview panel] scores were discarded, [S] still would have scored higher as he was allotted the top scores by panelists [RO2&3]. I note that there is no evidence in the record that [RO1] influenced panelists [RO2&3]." AJ's Decision. Nor is there evidence that either RO2 or RO3 had a history of giving S preferential treatment in the office. We further note in this regard that evidence of preferential treatment is not necessarily evidence of discrimination based on race or age.
Following a review of the record, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence,that discrimination occurred. Nor has Complainant shown the presence of a material issue of fact. We therefore discern no basis to disturb the AJ's findings.
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 Action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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. 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
September 13, 2016
__________________
Date
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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