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

Equal Employment Opportunity Commission

Nov 2, 2016

0120142702 (E.E.O.C. Nov. 2, 2016)

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

Frederick A.,1
Complainant,

v.

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

Appeal No. 0120142702

Hearing No. 450-2014-00003X

Agency No. HS-ICE-23116-2012

DECISION

Complainant filed an appeal from the Equal Employment Opportunity Commission
Administrative Judge (AJ)’s decision dated June 30, 2014, which effectively became the
Agency’s final decision, 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. 29 C.F.R. § 1614.109(i). For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint, filed on January 10, 2013, Complainant alleged discrimination based on sex
(male) when he was not selected for the position of Deportation Officer, Vacancy
Announcement LAG-FDA-676859-MA-165. Upon completion of the investigation of the
complaint, Complainant requested a hearing and on June 30, 2014, the AJ issued a decision
without holding a hearing, finding no discrimination. Since the Agency did not issue its final
order, the AJ’s decision effectively became the Agency’s final decision. Complainant appealed
from this decision.

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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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. At the relevant time period at issue, Complainant was
employed as an Immigration Enforcement Agent, GS-9, in the Agency’s Dallas Field Office,
Dallas, Texas. Complainant claimed that on July 31, 2012, he learned that he was not selected
for the position of Deportation Officer at issue.

The Agency indicated that in June, 2012, it posted Vacancy Announcement LAG-FDA-
676859-MA-165, for the position of Deportation Officer, GS-1801-9/11/12, which was a Merit
Promotion announcement open only to Agency employees. There were 20 vacancies for all the
field offices. There were nine vacancies for just the Dallas Field Office for which
Complainant applied and qualified at the GS-11 level. There were 38 qualified applicants,
including Complainant, for nine vacancies at issue at the Dallas Field Office.

The Agency stated that for the selection process, the two recommending managers: gave scores
for each applicants, including Complainant, by utilizing a matrix which included columns for
applicants’ education, prior law enforcement experience, prior INS/DHS experience, and
supervisory experience; reviewed applicants’ resume and their knowledge, skills, and abilities;
considered their own observation of the applicants as well as their managers’ and supervisors’
input of some applicants concerning their attitude, work ethics, and general work productivity;
and conducted no interviews. Based on the foregoing considerations, on July 18, 2012, the
managers recommended ten applicants (three female and seven male), who received matrix
scores ranging from 8 to 15, to the selecting official for the vacancies. The matrix scoring
reflects that there were 28 applicants who received the score ranging from 8 to 15.
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Complainant received the score of 7 (he was one of the 10 applicants who received a score
below 8). On July 26, 2012, the selecting official selected nine selectees (three female and six
male) from the ten recommended.

Complainant claimed that he did not receive 2 points on the matrix under “Other Federal
Experience” for his 13 months of federal experience with the Federal Bureau of Prisons,
Department of Justice, in Pollock, Louisiana. The recommending officials acknowledged this
mistake was an unintentional oversight and not based on Complainant’s sex. Complainant also
claimed that he had experience with the Louisiana State Department of Corrections for 1.5
years, i.e., 12/2004 - 6/2006, but did not receive points on the matrix under “State/Local
Experience.” However, we note that Complainant’s resume did not reflect this experience.
Assuming Complainant received extra points as he claimed, we note that there is no evidence
that he would have been recommended by the recommending managers since the managers
recommended only nine out of 28 candidates based on not only the matrix score but also other
considerations, described above. The record indicates that the three female selectees all had
supervisory experience and bachelors/associate degrees whereas Complainant had none.

After a review of the record, we agree with the AJ that Complainant failed to rebut the
Agency’s legitimate, nondiscriminatory reasons for not selecting him for the position.
Furthermore, Complainant failed to show that his qualifications for the position were plainly
superior to the selectees’ qualifications. See Wasser v. Department of Labor, EEOC Request
No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant has
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 2, 2016
Date