Hattie K.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Jan 9, 2018

0120160096 (E.E.O.C. Jan. 9, 2018)

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

Hattie K.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120160096

Hearing No. 560-2015-00183X

Agency No. HS-ICE-00859-2014

DECISION

On October 5, 2015, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 31, 2015, final decision 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract
Transportation Specialist in Air Operations, Enforcement and Removal Operations at the
Agency’s work facility in Kansas City, Missouri.

On June 2, 2014, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (Caucasian), sex (female), age (45), and in
reprisal for her prior protected EEO activity under Title VII and the ADEA when:

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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1. On January 9, 2014, Complainant learned that she was not referred for selection
consideration for a Mission Support Specialist position, GS-0301-09.

2. On January 16, 2014, Complainant learned that she was not referred for selection
consideration for a Management and Program Analyst position, GS-0301-13.

3. On December 13, 2013, Complainant learned that she was not referred for selection
consideration for an Enforcement and Removal Assistant position, GS-1802-08.

4. On December 24, 2013, Complainant learned that she was not referred for selection
consideration for a Supervisory Mission Support Specialist position, GS-0301-13.

On September 5, 2014, the Agency accepted claims (1-2) for investigation. The Agency
dismissed claims (3-4) pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant
failed to initiate contact with an EEO Counselor in a timely manner. The Agency stated that
Complainant initiated contact with an EEO Counselor on March 26, 2014, more than 45 days
after the occurrence of the alleged discriminatory events.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant requested a hearing. The AJ dismissed the hearing
request as a sanction for Complainant’s failure to appear for the Initial Conference and for failing
to contact the AJ regarding her failure to appear. The AJ remanded the complaint to the Agency,
and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The record reflects that Complainant applied for the vacant positions of Mission
Support Specialist and Management and Program Analyst. Complainant was subsequently
informed that her name was not among the most highly qualified candidates for the positions and
her name was not referred to the selecting official for consideration for either position. The
Agency noted that a Supervisory Human Resources Specialist explained that due to the
President’s Hiring Reform Initiative of 2010, category rating was mandated for public job
notices in the competitive service. The Agency stated that eligible applicants are ranked and
placed in predefined categories and the names of applicants in the highest quality category are
referred on the Certificate of Eligibles to the selecting official for consideration. The Agency
noted that preference eligibles are listed ahead of non-preference eligibles within each quality
category, thus preserving veterans’ preference rights.

The Supervisory Human Resources Specialist asserted that Complainant’s application was not
referred to the selecting official for the vacancies because only veterans’ preference eligible
candidates were referred as best qualified candidates, and Complainant was not a veteran.
According to the Supervisory Human Resources Specialist, the two postings were public job
notices, to which veterans’ preferences applied.
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The Supervisory Human Resources Specialist stated that there was a sufficient pool of best-
qualified veterans among the applicants for both positions, as there were 37 preference eligible
veterans in the best-qualified category for the Mission Support Specialist position, and 52
preference eligible veterans in the best-qualified category for the Management and Program
Analyst position. The Agency stated that the Supervisory Human Resources Specialist cited 5
U.S.C. § 3318, which requires that a selecting official not pass over a preference eligible to select
a non-preference eligible unless there are proper and adequate reasons for doing so and the
selecting official obtains approval. According to the Supervisory Human Resources Specialist,
only preference eligibles were referred as best qualified candidates for the two positions, which
resulted in the exclusion of non-veterans from the referral list. The Agency determined that this
explanation constituted a legitimate, nondiscriminatory reason for Complainant’s nonselections.
The Agency further determined that Complainant failed to submit any evidence to refute
management’s reason or to demonstrate pretext. Thereafter, Complainant filed the instant
appeal.

CONTENTIONS ON APPEAL

Complainant filed a brief in support of her appeal, however, the Agency asserts that the brief
filed by Complainant in support of her appeal is untimely. The Agency states that Complainant
filed her appeal on October 5, 2015, but her appeal brief was not submitted until November 6,
2015, two days after the expiration of the thirty-day time period for submitting comments or a
brief in support of an appeal.

The Agency states as to the merits of the complaint that although Complainant contends the
nonselections were motivated by discrimination and reprisal, the selecting officials were not
involved in the decisions to exclude Complainant from the best qualified candidates. The
Agency states that its Office of Human Capital had the role of processing the applicants into the
best qualified lists for the positions. According to the Agency, the selecting officials testified
that they only reviewed the resumes on the certification list after the Office of Human Capital
processed the applications from the public job notices for the positions. The Agency notes that a
Human Resources Specialist states that the selecting officials never contacted her to discuss any
applicant who applied for these positions or to contact her for the purpose of dissuading or
influencing her not to refer particular applicants. According to the Supervisory Human
Resources Specialist, she did not receive communication from either of the selecting officials at
any point to discuss Complainant. Further, the Agency asserts that even if Complainant had
been on the Certificate of Eligibles for the public job notice announcements, it would have been
improper for the selecting official to choose Complainant unless the selecting officials requested
to pass over each of the 37 and 52 preference eligible veterans in the best qualified category for
the respective positions.

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ANALYSIS AND FINDINGS

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). She must generally 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. Co. 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. To establish a prima facie case of reprisal, Complainant must show that: (1) she
engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the Agency; and (4) a nexus exists
between her protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Initially, we observe that Complainant filed her appeal on October 5, 2015, and had thirty days to
submit comments or a brief in support of her appeal. Thus, the brief submitted by Complainant
on November 6, 2015, is untimely and will not be considered. We shall assume arguendo that
Complainant has set forth a prima facie case of discrimination under each of the alleged bases for
each nonselection. The Agency stated with regard to each of the two nonselections that
Complainant’s application was not referred to the selecting official for the vacancies because
only veterans’ preference eligible candidates were referred as best qualified candidates, and
Complainant was not a veteran. The Supervisory Human Resources Specialist stated that there
was a sufficient pool of best-qualified veterans among the applicants for both positions, as there
were 37 preference eligible veterans in the best-qualified category for the Mission Support
Specialist position, and 52 preference eligible veterans in the best-qualified category for the
Management and Program Analyst position. We find that the Agency has articulated legitimate,
nondiscriminatory reasons for Complainant’s nonselections.

Complainant attempts to establish pretext by arguing that she is better qualified than several of
the candidates who were referred for selection consideration. According to Complainant, she has
been involved since the start-up of the Air Operations program to which these positions are
assigned, and has experience performing in these positions. Complainant states that she filled in
when management went on vacation. Upon review of the record, we find that Complainant has
failed to establish that the Agency’s explanation for her nonselections was pretext intended to
hide discriminatory motivation.
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The record reflects that Complainant was not referred for selection consideration for the two
positions at issue because only veterans’ preference eligible candidates were referred as best
qualified candidates, and Complainant was not a veteran.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that
Complainant did not establish that she was discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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).
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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 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

January 9, 2018
Date