Eddie Soto, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionNov 13, 2009
0120080336 (E.E.O.C. Nov. 13, 2009)

0120080336

11-13-2009

Eddie Soto, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.


Eddie Soto,

Complainant,

v.

Janet Napolitano,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 0120080336

Hearing No. 551-2006-00057X

Agency No. HS-05-CBP-003442

DECISION

On October 24, 2007, complainant filed an appeal from the agency's

September 13, 2007 final order 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. The Commission accepts the appeal, pursuant to

29 C.F.R. � 1614.405(a). For the following reasons, the Commission

AFFIRMS the agency's final order.

BACKGROUND

At the time of events giving rise to this complaint, complainant worked

as a Customs and Border Protection Officer, GS-11, at the agency's Port

of Entry in Del Bonita, Montana. On October 7, 2004, the agency posted

a vacancy announcement (CFCPB-2005-1546) for the GS-12 position of Port

Director of the Port of Entry at Del Bonita, Montana. Major duties

included supervising the operations at the port of entry, evaluating

employee performance and conduct, resolving disciplinary actions, and

maintaining operating budgets.

Complainant, who had previously served as an interim Port Director for

the Port of Entry at Del Bonita, applied for the position. However,

the agency ultimately selected a GS-13 Program Analyst, who worked in

the agency's Office of International Affairs.

On June 3, 2005, complainant filed an EEO complaint alleging that he was

discriminated against in reprisal for prior EEO activity1 when, on March

23, 2005, complainant learned that he was not selected for the position

of Port Director under vacancy announcement number CFCPB-2005-1546.

At the conclusion of the investigation, complainant was provided with a

copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. Over complainant's objections, the AJ assigned

to the case granted the agency's August 24, 2006 motion for a decision

without a hearing and issued a decision without a hearing on August

7, 2007. The agency subsequently issued a final order adopting the

AJ's finding that complainant failed to prove that he was subjected to

discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, complainant contends that the AJ erred in issuing a decision

without a hearing because the agency failed to clearly set forth, through

the introduction of admissible evidence, legitimate, nondiscriminatory

reasons for choosing the selectee over complainant. In addition,

complainant maintains that he was the superior candidate because he

possessed the relevant experience, knowledge, and skills for the job,

having received an excellent performance rating as the interim Port

Director for the Del Bonita facility.

ANALYSIS AND FINDINGS

Standard of Review

In rendering this appellate decision, the Commission reviews de novo the

AJ's legal and factual conclusions, and the agency's final order adopting

them. 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 EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,

1999) (providing that an administrative judge's "decision to issue a

decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will

be reviewed de novo"). The Commission is free to accept (if accurate)

or reject (if erroneous) the factual conclusions and legal analysis of

the AJ and agency. See id. at Chapter 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 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").

AJ's Issuance of a Decision without a Hearing

The Commission must first determine whether the AJ appropriately 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. Department of Defense, 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) (suggesting that an

administrative judge could order discovery, if necessary, after receiving

an opposition to a motion for a decision without a hearing).

After reviewing the agency's motion and the complainant's response and

appellate brief, the Commission finds that complainant has not identified,

and the record does not reveal, a genuine issue of material fact in

this case that requires a hearing. In addition, the Commission finds

that the record was adequately developed for the AJ to issue a decision

without a hearing. Therefore, the AJ did not err by issuing a decision

without a hearing.

To prevail in a disparate treatment claim such as this, complainant

must satisfy the three-part evidentiary scheme fashioned by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

He must generally 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). The prima facie inquiry may be

dispensed with in this case, however, because the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). 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); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Agency's Burden of Production in Articulating Legitimate,

Nondiscriminatory Reasons

The United States Supreme Court has held that the McDonnell Douglas

framework places upon the defendant the burden of "producing evidence"

that an adverse employment action was taken "for a legitimate,

nondiscriminatory reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502,

506-507 (1993) (quoting Burdine, 450 U.S. at 254). "'[T]he defendant must

clearly set forth, through the introduction of admissible evidence,'

reasons for its actions which, if believed by the trier of fact, would

support a finding that unlawful discrimination was not the cause of

the employment action." Hicks, 509 U.S. at 507 (quoting Burdine, 450

U.S. at 254-255). "An articulation not admitted into evidence will

not suffice. Thus, the defendant cannot meet its burden merely through

an answer to the complaint or by argument of counsel." Burdine, 450

U.S. at 255 n.9.

Generally, the Commission requires an agency to provide a clear,

specific, and individualized explanation for the treatment accorded to

the complainant that frames the factual issue with sufficient clarity

so that the complainant has a full and fair opportunity to demonstrate

that the agency's reason was pretextual. See Parker v. United States

Postal Service, EEOC Request No. 05900110 (April 30, 1990); Lorenzo

v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997).

In this case, the Commission finds that the agency met its burden of

production in articulating legitimate, nondiscriminatory reasons for

complainant's nonselection. The record contains a statement by the

selecting official, who stated that he instructed the Directors of Field

Operations to recommend their top three candidates for the Port Director

position in their respective areas. The selecting official stated that

he generally concurred with the recommendations from the Directors of

Field Operations unless his review of the resumes revealed something

that was overlooked.

In this case, the selecting official stated that he relied on the

recommendation of the Acting Director of Field Operations for the

Seattle office (recommending official). In a document prepared by the

recommending official, but ultimately signed by the permanent Director

of Field Operations for the Seattle office on January 14, 2005, the

selectee was the first choice for recommendation, while complainant

was the second choice. According to this document, the selectee was

chosen because he had southern border and headquarters experience,

and helped develop and deliver enforcement training at another port

of entry. The document further stated that the reason complainant,

as the interim incumbent, was not chosen was because of his average

rating in his ability to work with others and his ability to negotiate

effectively on his reference check. In addition, complainant's "Career

finder" rating was lower than the selectee's.

In her affidavit, the recommending official averred that she based her

recommendation on the input of complainant's second-line supervisor

at the time, the Service Port Director of the Service Port in Great

Falls, Montana (second-line supervisor). The second-line supervisor

averred that he looked for candidates with relevant experience, depth

of knowledge, management capabilities, accountability, and openness

to change. Because the staff at the Del Bonita port of entry was only

five people, the second-line supervisor felt that it was not necessary to

have prior port-of-entry management experience. What was more important,

according to the second-line supervisor, was that the selectee demonstrate

openness to change, accountability, responsibility, and a general ability

to manage people and programs.

The second-line supervisor averred that the selectee had received

"a glowing recommendation from his supervisor," possessed very strong

managerial skills as evidenced by his experience at the Southern Border

and headquarters and his responsibility for programs of national and

international scope. The record includes a reference check form in which

the selectee was rated "exceptional" in all categories. A handwritten

note at the bottom of this reference check form described the selectee as

"very articulate" and "self-motivated."

In contrast, the second-line supervisor attested that complainant's

experience was not as wide as the selectee's, and that even though

complainant served as the interim Port Director for the facility,

the second-line supervisor believed that, based on an incident in

February 2004, complainant was not ready to serve in that position on a

permanent basis. In his affidavit, the second-line supervisor explained

that in February 2004, during a ban on Canadian meat and cattle, thirty

bulls were successfully smuggled into the country through the Port of

Entry at Del Bonita while complainant was the interim Port Director.

Although complainant had not been present at the facility at that

time, he was nevertheless responsible for all actions occurring at the

Port of Entry. According to the second-line supervisor, a subsequent

investigation found that proper documentation of enforcement actions

was not being maintained at the facility at Del Bonita.

The second-line supervisor further attested that he solicited

recommendations from the Area Port Director with supervisory authority

over the relevant position. In this case, the second-line supervisor

averred that he gave complainant's first-line supervisor, the Area Port

Director of the Sweetgrass Area, (first-line supervisor) the first-level

review of the applications and an opportunity to make a recommendation

for the position.

Complainant's first-line supervisor at the time averred that the

selectee's application was extremely well-written, detailed, and

thorough. The first-line supervisor attested that he believed the

selectee had outstanding verbal and written communication skills, and a

thorough understanding of the agency's mission objectives based on his

prior experience working at headquarters and representing the agency in

various countries. The first-line supervisor averred that because the Del

Bonita port of entry had a staff of five employees, prior Port Director

experience was not critical to the selectee's ability to successfully

perform the job. Rather, the first-line supervisor attested that it

was more important that the selectee have good communication skills

and a thorough understanding of the agency's missions and objectives.

Because the selectee had been exposed to more aspects of the agency

than complainant, the first-line supervisor averred that the selectee

was the superior candidate compared to complainant.

The Commission finds that the agency set forth, with sufficient

clarity, reasons for complainant's nonselection such that complainant

was given a full and fair opportunity to demonstrate that the agency's

reasons were pretextual. See Burdine, 450 U.S. at 258. The agency

explained that the selectee was chosen over complainant for his greater

range of experiences working at headquarters and internationally.

These experiences, combined with the quality and thoroughness of the

selectee's writing in his application, suggested that the selectee

possessed better verbal and written communication skills. In addition,

because of the relatively small size of the Del Bonita port of entry,

prior port director experience was not necessarily dispositive so long as

the selectee could demonstrate management skills in other ways. Finally,

because of the February 2004 cattle smuggling incident that occurred

while complainant was serving as the interim Port Director, complainant's

port director experience was not necessarily more compelling than the

selectee's managerial experiences at headquarters and overseas.

The Commission also finds that the agency's articulated reasons are

supported by probative evidence in the record. The record contains

the statements or affidavits of four officials who participated in the

selection process, the recommendation document signed on January 14,

2005 that ranked the selectee higher than complainant, the applications

of the selectee and complainant, and reference check forms. Therefore,

the Commission finds that the agency met its burden in articulating

legitimate, nondiscriminatory reasons for complainant's nonselection.

Pretext

Complainant argues that there is a genuine issue over whether he

established that the agency's articulated reasons were a pretext for

discrimination. Specifically, complainant contends that he was the more

qualified candidate because he had direct, relevant experience for this

position when he served as the interim Port Director for this facility.

Complainant also disputes the agency's contention that he was responsible

for the February 2004 cattle smuggling incident. In addition, despite

the February 2004 cattle incident, complainant nevertheless received a

performance rating of "excellent" as the interim Port Director.

In nonselection cases, pretext may be found where the complainant's

qualifications are plainly superior to the qualifications of the selectee.

See Wasser v. Department of Labor, EEOC Request No. 05940058 (November

2, 1995). The Commission finds that complainant has not shown that his

qualifications were demonstrably superior to those of the selectee.

In addition, the Commission finds that complainant failed to show,

by a preponderance of the evidence, that the recommending official's

written reasons for recommending the selectee, which the selecting

official ultimately relied on, were pretext for discrimination on

the basis alleged. Even though complainant disputes his second-line

supervisor's assessment that complainant was responsible for the February

2004 cattle smuggling incident and complainant's supervisors' valuing of

broad managerial experience over port director experience, complainant did

not dispute the recommending official's written reasons for not choosing

complainant: his average rating in his ability to work with others,

his average ability to negotiate effectively on his reference check,

and his lower "Career finder" rating compared to selectee. Therefore,

the Commission finds that the AJ did not err in issuing a decision without

a hearing, finding that complainant failed to establish discrimination

on the bases alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, the Commission affirms

the agency's final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)

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 (Z1008)

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

November 13, 2009

Date

1 Initially, complainant also alleged discrimination based on his race

and national origin; however, he subsequently withdrew those bases.

??

??

??

??

2

0120080336

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

8

0120080336