Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jul 25, 2014

0120112237 (E.E.O.C. Jul. 25, 2014)

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

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120112237

Agency No. HS-10-ICE-00443

DECISION
On March 25, 2011, Complainant filed an appeal from the Agency’s February 21, 2011, final
decision 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

. For the following reasons, the Commission REVERSES the
Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Immigration Enforcement Agent at the Agency’s facility in Burlington, Massachusetts. On
December 10, 2009, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of his race (African-American) when on September 8,
September 28, and October 5, 2009, he became aware that management did not select him for
the position of Deportation Officer, GS-12, as advertised under vacancy announcement number
LAG-DRO-265002-LLP-165.

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 EEOC
Administrative Judge (AJ). 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 him to discrimination as alleged. On appeal,
Complainant reiterates his contention that the Agency subjected him to unlawful race
discrimination. Complainant also argues that the Agency’s proffered reasons for his
nonselection are pretextual.

0120112237

2

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. (November 9, 1999) (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”).
To prevail in a disparate treatment claim, 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 he was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department 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 pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
Here, we find that Complainant established a prima facie case of race discrimination.
Specifically, the record shows that all of the selectees for the position of Deportation Officer
were outside of Complainant’s protected class.1

1 The record shows that three employees were selected for the position at issue. A fourth
selectee was placed into the position as a spousal transfer and, as such, was not required to
compete.
Next, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions. Namely, the record reflects that
Complainant applied for the position at issue and made the Best Qualified list, however three
other applicants were selected. The recommending official (RO) states that he based his
recommendations on the resume, work history, and educational background of the candidates,
as well as on his first-hand personal opinions of the candidates’ work performance. The RO
further states that the candidates he recommended had experience in “Detention and Removal
Operations.” The management official who concurred with the recommendations also stated
that the selectees were “known quantities” and that their work in the Travel Unit made them
the best qualified for the positions. Finally, the selecting official (SO) stated that he “was
looking for employees who were self starters and had a reputation of doing jobs that no one
else was willing to accept.” The SO further stated that the selectees were chosen based upon
“their education, experience, past job performance, work products and they were a known
0120112237

3
quantity” as well as their having worked in the Travel Unit which “is not a highly sought after
position.”

Because the Agency proffered legitimate, nondiscriminatory reasons for Complainant’s
nonselection, Complainant now bears the burden of establishing that the stated reasons are
merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No.
05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the proffered
explanations are unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at
256. Complainant can also establish pretext by showing that his qualifications are “plainly
superior” to those of the selectee. Bauer v. Bailar

, 647 F.2d 1037, 1048 (10th Cir. 1981).
Here, we find that Complainant has shown, by a preponderance of the evidence, that the
Agency’s articulated reasons for his nonselection were a pretext for race discrimination. In so
finding, we note that an objective comparison of the applications of Complainant and the
selectees does not support the Agency’s articulated reasons for its actions. Specifically, we find
that in comparing the applications of the selectees to Complainant’s application, it is clear that
Complainant’s qualifications are plainly superior to those of the selectees. A review of
Complainant’s performance appraisal shows that he was rated outstanding in every category,
with his supervisor (S1) describing him as a “self-starter” who “takes on projects that are
above and beyond what is expected of him.” We note that these descriptions are precisely the
same as those the RO and SO stated were the traits the selectees possessed but Complainant did
not. Additionally, the record shows that Complainant was working at a higher grade level than
the selectees, employed in the position of Supervisory Immigration Enforcement Agent. The
record further shows that while the selectees were all employed as Immigration Enforcement
Agents, Complainant had been promoted out of that position in August 2008, after having
served in the position for twelve years. In contrast, one of the selectees had twelve years total
experience with the Agency while the other two selectees had only three and four years
experience. Further, a review of the certificate for the position at issue shows that Complainant
was given a rating of 96, the same rating as one of the selectees, while the other two selectees
were given ratings of 92 and 90.

We note that S1 describes Complainant as being “an asset to the service” who is “always calm
and professional, regardless of the situation” and a “natural leader.” He further states that he
does not believe the selectees for the Deportation Officer position were all more qualified than
Complainant, and states that despite being Complainant’s supervisor, he often goes to
Complainant for information. S1 states that he was at no time contacted regarding
Complainant’s application for the position at issue. Finally, with respect to the SO’s contention
that the selectees’ work in the Travel Unit made them better qualified, Complainant states that
employees are generally assigned to the Travel Unit, that such assignments are neither
voluntary nor based on requests, and that only one other Deportation Officer had prior
experience in the Travel Unit. The Agency proffered no evidence to rebut Complainant’s
assertions, and as such we find that SO’s statement that the selectees’ experience in the Travel
Unit made them more qualified than Complainant appears not worthy of belief.

0120112237

4
Finally, the record shows that the Agency has a history of not selecting African-American
candidates for the position of Deportation Officer in Complainant’s facility, with S1 stating that
he has “never seen a Black Deportation Officer in Boston in … 15 years.” Further, the record
contains affidavit statements from two of Complainant’s coworkers who state that selections at
the facility at issue are based upon race and that “[m]anagement grooms those people they
want to promote and they are always Caucasians.” While this, in and of itself, is not definitive
evidence of a racial bias in the selections at issue, we find that coupled with Complainant’s
qualifications and the SO’s lack of credibility regarding the criteria used for the selections, we
find that Complainant has shown, by a preponderance of the evidence, that the Agency
subjected him to unlawful race discrimination when it did not select him for the position of
Deportation Officer.

CONCLUSION
The Commission finds that the Agency discriminated against Complainant on the bases of his
race when Complainant was not selected for the position of Deportation Officer and we
REVERSE the Agency decision finding no discrimination. The Agency shall comply with the
ORDER herein.

ORDER
The Agency is ordered to take the following remedial actions within 60 days of the date this
decision becomes final:

(1) Retroactively promote Complainant to the position of Deportation Officer, GS-12,
or a substantially equivalent position, as of September 8, 2009.
(2) Provide Complainant back pay from September 8, 2009, until the date he is placed
in the position of Deportation Officer. The Agency shall determine the appropriate
amount of back pay (with interest, if applicable) and other benefits due
Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the
Agency’s efforts to compute the amount of back pay and benefits due, and shall
provide all relevant information requested by the agency. If there is a dispute
regarding the exact amount of back pay and/or benefits, the Agency shall issue a
check to Complainant for the undisputed amount. Complainant may petition for
enforcement or clarification of the amount in dispute. The petition for clarification
or enforcement must be filed with the Compliance Officer, at the address referenced
in the statement entitled “Implementation of the Commission’s Decision.”
(3) Conduct a supplemental investigation pertaining to Complainant’s entitlement to
compensatory damages incurred as a result of the Agency’s discriminatory actions
in this matter. The Agency shall afford Complainant 60 days to submit additional
evidence in support of a claim for compensatory damages. Within 45 days of its
receipt of Complainant’s evidence, the Agency shall issue a final decision
determining Complainant’s entitlement to compensatory damages, together with
appropriate appeal rights.
0120112237

5
(4) The Agency shall provide a minimum of eight hours of EEO training to all
responsible management officials in the Boston Field Office regarding their
responsibilities under EEO laws, with a special emphasis on Title VII.
(5) The Agency shall consider taking appropriate disciplinary action against all
responsible management officials still employed by the Agency. 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
employment, then the Agency shall furnish documentation of the departure date(s).

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 evidence
that corrective action has been implemented.

POSTING ORDER

The Agency is ordered to post at its Boston Field Office in Burlington, Massachusetts, copies
of the attached notice. Copies of the notice, after being signed by the Agency’s duly authorized
representative, shall be posted by the Agency within thirty (30) calendar days of the date this
decision becomes final, and shall remain posted for sixty (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 at
the address cited in the paragraph entitled “Implementation of the Commission's Decision,”
within ten (10) calendar days of the expiration of the posting period.
(G0610)

ATTORNEY'S FEES

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501
(e)(1)(iii), he/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 this decision becoming final. The Agency shall then process the
claim for attorneys fees in accordance with 29 C.F.R. § 1614.501.
(H0610)

IMPLEMENTATION OF THE COMMISSION’S DECISION

(K0610)
Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
0120112237

6
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. 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

(M0610)
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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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).

0120112237

7
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

This is a decision requiring the Agency to continue its administrative processing of your
complaint. However, if you wish to file a civil action, you have the right to file such action in
an appropriate United States District Court within ninety (90) calendar days from the date that
you receive this decision. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your
appeal with the Commission. 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. Filing a civil action will terminate the
administrative processing of your complaint.
(R0610)

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 25, 2014