Hattie K.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionJan 9, 20180120160096 (E.E.O.C. Jan. 9, 2018) Copy Citation 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. 0120160096 2 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. 0120160096 3 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. 0120160096 4 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. 0120160096 5 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). 0120160096 6 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 Copy with citationCopy as parenthetical citation