Gloria D.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Aug 16, 2016

0120140469 (E.E.O.C. Aug. 16, 2016)

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

Gloria D.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120140469

Agency No. HS-CIS-22508-2012

DECISION

The Commission accepts Complainant’s appeal from the October 17, 2013 final Agency
decision (FAD) concerning her 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’s review is de novo. For the
following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Immigration
Services Officer at the Agency’s Adjustment of Status Office in Los Angeles, California. On
February 10, 2012, the Agency issued Job Announcement Number CIS-604524-LOS for a
temporary, not-to-exceed one year GS-13 Supervisory Immigration Services Officer (SISO)
position. The Agency had previously issued Job Announcement CIS-604588-LOS for a
permanent SISO position. Complainant applied for both positions, and was referred for further
consideration.

The Selecting Official (SO) received separate Certificates of Eligibles for the positions, and
decided to convene one interview panel for both vacancies. The interview panel asked 10
standardized questions to each candidate and each candidate submitted two short essays

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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describing their leadership styles and their views about how to effectively motivate
Immigration Service Officers. Complainant was interviewed on March 23, 2012. On March
27, 2012, Complainant learned that she was not selected for the permanent SISO position
advertised under CIS-604588-LOS.

On May 1, 2012, SO accepted the interview panel’s recommendation and selected the Selectee
for the temporary SISO position advertised under CIS-604524-LOS. On May 3, 2012,
Complainant learned that she was not selected for the temporary SISO position.

On September 11, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race/national origin (Hispanic)2 and sex (female)
when:

1. On May 3, 2012, Complainant became aware that she had not been selected for the
position of Supervisory Immigration Service Officer (SISO) located in Los Angeles,
as advertised under Job Announcement CIS-604524-LOS.3

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge.4 Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and determined that management had articulated legitimate, non-discriminatory

2 The Agency designated Complainant’s race as “White” in its Letter of Acceptance; however,
Complainant explained in her affidavit that she considers her race and national origin as
“Hispanic.” The Commission typically recognizes this term as an indication of national origin
rather than race. However, herein the Commission acknowledges Complainant’s self-
identification of her race as Hispanic.

3 The Agency dismissed three additional claims, including Complainant’s claim that she was
discriminatorily not selected for the permanent SISO position announced under CIS-604588-
LOS, for untimely EEO counselor contact. Complainant specifically states in her appeal that
she does not challenge the Agency’s dismissal, but she argues that it shows “the overall
discrimination exercised against [her] in her pursuance of a promotion or permanent
supervisory position.” Upon review of the record, the Commission finds no basis to disturb
the Agency’s dismissal of the untimely claims and AFFIRMS their dismissal.

4 The Agency conducted a supplemental investigation to clarify matters related to the selections
of the temporary and permanent SISO positions. The Commission notes that only the
temporary SISO selection will be addressed in this decision as the claim related to the
permanent SISO position was dismissed as untimely.
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reasons for its actions. More specifically, SO explained that he did not select Complainant for
the temporary SISO vacancy because the Selectee scored higher in his interview and was
recommended for selection by the interview panel. Further, SO noted that the Selectee had
experience processing various applications and petitions and had extensive customer service
experience.

One Interview Panelist (P1) stated that the Selectee’s interview and essay responses described a
calm, thorough, and motivating leadership style focusing on work process to produce timely
decisions. P1 affirmed that the Selectee’s responses describing real problem resolution
strategies, and providing a real example of innovation, were superior to those of Complainant.
P1added that Complainant performed well in the interview, but not as well as the Selectee in
terms of listening carefully to questions before answering. A second Interview Panelist (P2)
confirmed that the Selectee scored higher than Complainant in the interview. P2 stated that the
Selectee’s essays were better written, and his experience adjudicating and processing
applications and petitions was vastly greater than that of Complainant. P2 stated that the
Selectee provided more detailed answers to interview and essay questions than Complainant.

The Agency concluded that Complainant failed to prove by a preponderance of the evidence
that management’s legitimate, nondiscriminatory reasons for not selecting her for JAN CIS-
604524-LOS was a pretext for discrimination. Complainant offered no argument or evidence
in opposition to management’s assertion that the Selectee’s superior interview and essay
performance led to his recommendation by the interview panel and eventual selection. In
addition, the Agency determined that Complainant failed to show that her qualifications were
plainly superior to the Selectee’s. As a result, the Agency found that Complainant had not
been subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, as previously noted, Complainant raises arguments related to her non-selection for
the permanent SISO position. In addition, Complainant argues that the Agency’s processing
and investigation of her complaint was incomplete and that she is entitled to default judgment
as a sanction. Complainant contends that the Agency has not offered a legitimate,
nondiscriminatory reason for not selecting her. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s dissatisfaction regarding the
processing and investigation of her complaint. Complainant claims on appeal that the
investigator assigned to investigate her complaint made several errors, and that the
investigation was inadequate and incomplete. Upon review of the entire record, the
Commission is not persuaded that the investigation into Complainant's complaint was
incomplete or improper. Complainant has not presented any evidence of impropriety in the
processing of her complaint, and Complainant failed to request a hearing, a process which
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would have afforded her the opportunity to conduct discovery and to cure alleged defects in the
record. Thus, despite the above referenced arguments, the Commission determines that the
investigation was properly conducted.

Additionally, the Commission notes that Complainant argues on appeal that the Agency failed
to address her claim that her non-selection was additionally based on reprisal for her prior
protected EEO activity. A review of the record reveals that Complainant did not indicate on
the formal complaint form that she intended to allege reprisal as a basis of discrimination;
however, she did state so in a statement attached to her formal complaint. The Commission
finds the exclusion of the basis of reprisal to be harmless error as the record in the present case
is adequately developed for the Commission to address Complainant’s claim of reprisal
discrimination.

Disparate Treatment

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). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, record evidence shows that Agency officials articulated legitimate, nondiscriminatory
reasons for not selecting her for the temporary SISO position at issue announced under CIS-
604524. More specifically, SO affirmed that he vetted the resumes by reviewing the
candidates’ experience in the Los Angeles office, employment history in other Agency offices,
non-government work history, previous supervisor experience and its duration, education, and
language skills. ROI, Ex. F-3, at 4. SO recommended 14 people for interview with the
interview panel, including Complainant. Id. P1 stated that after interviewing the candidates,
the panelists individually assigned ratings and subsequently ranked the candidates. ROI, Ex.
F-6, at 4. P1 confirmed that the panel recommended the Selectee based on his description of
his leadership style as calm, thorough, and motivating. Id. at 6. Additionally, P1 explained
that P1 demonstrated his ability to make timely decisions, described real problem resolution
strategies, and provided examples of innovation. Id. P1 noted that Complainant did well in
her interview, but she could have done a better job of listening to the questions and focusing
her responses toward the questions. Id. at 7. P2 added that the Selectee had vastly greater
adjudicative experience. ROI, Ex. F-5, at 8. As a result, the panel recommended the Selectee
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for selection, and SO accepted their recommendation and selected the Selectee. ROI, Ex. F-3,
at 5.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext is by showing that his qualifications are observably superior to those of the selectee.
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not
the only way Complainant may establish pretext as to her non-selection claim.

In the instant case, the Commission finds that Complainant failed to show that her
qualifications for the position were plainly superior those of the Selectee. In this case, the
Selectee had attributes that justified his selection, and the selection officials involved all
affirmed that they believed that the Selectee was better equipped to meet the Agency's needs.
In the absence of evidence of unlawful discrimination, the Commission will not second guess
the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v.
Burdine, 450 U.S. at 259.

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds that the record lacks evidence that the Agency's selection or the selection
process was tainted by discriminatory animus. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that discriminatory or retaliatory animus was a factor in its
actions. Complainant failed to carry this burden. As a result, the Commission finds that
Complainant has not established that she was subjected to discrimination or reprisal as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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:

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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 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

August 16, 2016
Date