Eldon P.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Nov 18, 2016

0120142096 (E.E.O.C. Nov. 18, 2016)

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

Eldon P.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120142096

Hearing No. 451-2013-00070X

Agency No. HS-ICE-22042-2012

DECISION

Complainant filed an appeal from the Agency’s final order dated April 14, 2014, finding no
discrimination with regard to his 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. For the following reasons, we AFFIRM the Agency’s final order finding no
discrimination.

BACKGROUND

In his complaint, filed on April 17, 2012, Complainant alleged discrimination based on race
(Hispanic), color (brown), national origin (Mexican-American), and age (over 40) when on
January 18, 2012, he learned that he was not going to be interviewed for the position of Senior
Attorney, GS-0905-15; and on February 28, 2012, he learned that he was not selected for that
position. Upon completion of the investigation of the complaint, Complainant requested a
hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On

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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March 7, 2014, the AJ issued a decision without holding a hearing, finding no discrimination.
The Agency’s final order implemented the AJ’s decision.

ANALYSIS AND FINDINGS

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. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

In the instant case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period, Complainant was
employed as an Assistant Chief Counsel, GS-14, at the Agency’s San Antonio Office of Chief
Counsel, Office of the Principal Legal Advisor, Immigration and Customs Enforcement (ICE),
in Harlingen, Texas.

The Agency indicated that it advertised a vacancy for the Senior Attorney, GS-15 position at
issue via an internal electronic message in September 2011. Therein, the Agency Chief
Counsel stated that: all applicants must submit a cover letter, resume, writing sample, and
performance appraisals for the past three years; the cover letter must address relevant
experience, education, training, self-development, awards, commendations, outside activities,
and other pertinent information; and incumbents must have excellence in legal writing and
research as evidenced by briefs, memoranda, and/or advisory position papers.

The Agency convened the panel of three managerial officials who reviewed candidates’ cover
letter, resume, writing sample, and performance appraisals. The panelists stated that six
applicants, including Complainant, were qualified and applied for the position. However,
indicated the panelists, Complainant was not referred for interview because he was not
qualified as one of the four best qualified candidates. Complainant, thus, was not selected for
the position.
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Specifically, the panelists indicated that Complainant was not referred for interview because
his cover letter was disorganized and poorly written and his writing sample was unimpressive
and outdated in that it contained a number of erroneous citations and inconsistencies and cited
case law that had changed since he wrote his writing sample back a number of years ago.
Complainant acknowledged the foregoing issues with his cover letter and writing sample.

Complainant however claimed that he was a seasoned attorney with over ten years of
employment with the Agency and approximately 20 years of overall legal advice and litigation
experience. The panelists acknowledged Complainant’s long years of experience, but stated
that the four best qualified candidates’ other factors outweighed such experience.

The panelists indicated that after considering candidates’ cover letter, resume, writing sample,
performance appraisals, and interview, they unanimously recommended a selectee (33 years
old, white, non-Hispanic), who was also an Assistant Chief Counsel, to the selecting official.
The selecting official ultimately selected the selectee based on the panelists’ recommendation.

After a review of the evidence in the record, the AJ determined and we agree that Complainant
failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not referring him for
ainterview thereby not selecting him for the position at issue. Furthermore, Complainant
failed to show that his qualifications for the position were plainly superior to the selectee’s
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s
action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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.
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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
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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 18, 2016
Date