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.
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0120080336
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080336