0120113596
08-23-2013
Jose R. DeJesus, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Jose R. DeJesus,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120113596
Hearing No. 520-2010-00452X
Agency No. HS-10-ICE-000941
DECISION
On July 27, 2011, the Equal Employment Opportunity Commission (EEOC or Commission) received Complainant's timely appeal from a June 24, 2011, final Agency decision (FAD) concerning his 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).1
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration Enforcement Agent (IEA), GS-9, at the Agency's Immigration and Customs Enforcement ((ICE), Office of Detention and Removal Operations, New York Field Office, Castle Point sub-office in New York.
On January 19, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his national origin (Hispanic) and age (44) when on or about October 22, 2009, he was not selected for the position of Deportation Officer, GS-9/12, in the Office of Detention and Removal Operations, New York Field Office, Castle Point sub-office in New York, advertised under vacancy announcement LAG-DRO-282168-LLP-200.
Following an investigation Complainant requested a hearing before an EEOC Administrative Judge (AJ), but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). It found no discrimination.
The Castle Point office was created solely to carry out the Agency's Criminal Alien Program (CAP). Its primary mission was to identify, interview, process, arrest, prosecute and remove from the United States criminal aliens posing a threat to public safety who are deportable. This involved both reactive and proactive criminal alien investigations. Reactive cases involved aliens currently incarcerated by federal/state/local authorities facing criminal prosecution or serving a term of incarceration following a conviction. Proactive cases involved criminal aliens who were not incarcerated and may be on probation or parole, criminal aliens who were previously deported and illegally reentered the United States, or aliens involved in criminal activity or charged with a crime who was not incarcerated. IEAs at Castle Point are primarily engaged in reactive criminal alien investigations, while Deportation Officers generally handle criminal prosecutions, case management of detained aliens, and oversee proactive criminal alien probation and parole initiatives in a role akin to a project manager.
Castle Point is supervised by the Assistant Field Office Director (AFOD), who reports to the Deputy FOD in New York, New York. The AFOD is Complainant's third line supervisor. The FOD is located in New York, New York, is the AFOD's second line supervisor, and was the selecting official. The Deputy FOD assigned the AFOD to work with his supervisory staff at Castle Point to create a selection recommendation panel (panel) and standardized criteria to review the resumes of the 13 candidates who were found eligible by the Agency's Human Resources Management (HRM) office for the position at issue, which included Complainant.
Castle Point is a small office. The AFOD chose two Castle Point Supervisory Detention and Deportation Officers (SDDOs) to serve on the panel with him, one of whom was Complainant's second line supervisor. Eight of the 13 eligible candidates, including Complainant, worked at Castle Point, and the AFOD stated that everyone on the panel had good personal knowledge of them.
The panel created eight rating factors, albeit the SDDOs input in their creation is unclear. The factors were Education, Current Position, Law Enforcement Experience, CAP Experience, Experience Identifying INA Violations, Criminal Prosecutions Experience, Case Related Work Experience, and Experience as a CAP Project Manager. The AFOD stated the rating factors were developed based on the most pertinent duties of a Deportation Officer at Castle Point. The highest possible score was 23. Based upon a review of the eligible candidate's resumes, the panel rated the candidates, a process which narrowed them down to the three with the highest ratings.2 Complainant did not make this cut. The selectee was rated 21, and Complainant 17. The panel sent a memorandum to the selecting official recommending the eventual selectee (white, age 26) for selection.
The AFOD authored the recommendation memorandum, which he supported in his affidavit. Therein, he wrote as follows: The panel highly recommended the eventual selectee. He began his federal career with the U.S. Customs and Border Protection as a Customs and Border Protection (CPB) Officer in December 2003 and achieved a promotion to GS-11, and in September 2007 was selected by ICE as an IEA assigned to Castle Point, and was currently a GS-9.3 As an IEA, the selectee quickly distinguished himself among his peers at Castle Point as one of the hardest working, conscientious agents in the office. His overall CAP statistics bared this out -- in fiscal year 2009 he conducted 437 CAP jail interviews and issued 283 Charging Documents Issued, for a total of 720 cases, which are the routine work products for the IEA CAP position, ranking him first of 20 IEAs at Castle Point.
The selectee is a self-starter and on his own initiative expressed an interest in pursuing criminal prosecutions, traditionally a Deportation Officer duty, and was the first and only Castle Point IAE to present and have a prosecution accepted by the U.S. Attorney's Office (USAO) in fiscal year 2008. In fiscal year 2009, the selectee presented 23 cases to the USAO for prosecution, 10 of which were accepted, which ranked him number one among his IAE peers and number one for the entire Castle Point office. The selectee excelled in identifying new areas of CAP duties. The AFOD gave three examples, one of which was the selectee approaching federal U.S. Probation to include them in an ongoing CAP probation initiative. Castle Point had similar initiatives with seven county probation departments, but none with federal probation, and realizing that there remained only one unassigned Castle Point probation initiative the selectee proactively seized upon that opportunity to take charge of that project, and planned and organized it with little or no assistance, requiring minimal supervision. For this and another project, the selectee received a score of 3 on the rating factor "Experience as a CAP Project Manager." This concludes our detailing of the recommendation memorandum.
The selecting official stated that he chose the selectee based upon the selection recommendation panel's recommendation, which he found persuasive.
In its FAD the Agency found that where the employer has articulated legitimate nondiscriminatory reasons for its actions, the fact finder need not determine whether the complaint made out a prima facie case of discrimination, and accordingly it would not make such a determination. Complainant and the selectee tied on all the rating criteria except Criminal Prosecutions Experience and Experience as a CAP Project Manager, where the selectee scored higher. The Agency found that the AFOD explained that the selectee rated 3 on the first factor because in fiscal year 2009 he ranked first among his 19 Castle Point IEA peers in cases presented and accepted for prosecution in 2009, and Complainant scored zero because he had no such cases.4 The Agency noted that on the other rating factor the AFOD explained that the selectee was rated 3 because on his own initiative he developed liaisons and proactive alien criminal initiative with the U.S. Probation Department and a county sex offender unit,5 and Complainant got a 2 because he was the primary point of contact between Castle Point and a Federal Correctional Institution. The Agency added that the panel considered the candidates' CAP production in making a final determination on the recommendation, and that the AFOD stated in fiscal year 2009 the selectees production was 720 cases, and Complainant's was 303 cases.
The Agency found that Complainant failed to prove that the Agency's explanation for choosing the selectee was pretext to mask discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
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). He must generally establish a prima facie case by demonstrating that he 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has 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).
We agree, as found by the Agency that management articulated legitimate, nondiscriminatory reasons for its actions, which are detailed above. In an effort to prove pretext, Complainant argues that he was better qualified than the selectee. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981).
On appeal Complainant refers to the fact that the rating factor criteria for Education provided two points to anyone with a Bachelor of Arts or Science (B.A. or B.S.) without regard to the field of study. He argues that his Bachelor's degree in Criminal Justice Administration warrants a higher rating on Education than the selectee, who had a Bachelor's in Business Management. We find that in making this argument Complainant is substituting his judgment for the Agency on how to evaluate candidates, and he has not shown the Agency's evaluation was based on discriminatory criteria. We add that the selectee had an Associate Degree in Criminal Justice.
The criteria for the rating factor CAP Experience provided for a candidate to get a rating of two for one or two years experience, and three for over two years experience. The vacancy announcement required that candidates meet all qualification requirements by the closing date of the announcement (September 12, 2009). A notification of personnel action shows that the selectee was transferred to ICE, Castle Point, effective September 2, 2007, but Complainant contends that the qualification questionnaire submitted by the selectee pursuant to the vacancy announcement indicates that by September 12, 2007, he was in the CAP program for 1 year, 11 months, and 28 days, and hence he should have received a rating of 2 for this rating element. We disagree. The qualification requirements in the vacancy announcement refer to factors HRM used to find that a candidate meets the minimum eligibility requirements for the position, e.g., time in grade for specialized experience, not the rating factors used by the panel to narrow down the field of 13 candidates HRM determined were eligible. By the time the panel made its recommendation to the selecting official on October 19, 2009, the eventual selectee had more than two years of CAP Experience.
Complainant argues that the panel should have rated factors such as Spanish Proficiency and writing, and take into consideration the most recent performance appraisal. We find that in making this argument Complainant is substituting his judgment for the Agency on how to evaluate candidates, and he has not shown the Agency's evaluation was based on discriminatory criteria. As previously noted, HRM determined who was eligible, and the panel sought to narrow the eligible candidates down for the selecting official. We add, in any event, that in his affidavit Complainant indicated that Spanish proficiency was more important for IAE's than Deportation Officers since the later spend the majority of their time in the office, not the field, and have less contact with the alien population. Further, both Complainant and the selectee's most recent appraisals had overall ratings of "Outstanding."
Complainant argues that the AFOD created the rating element of "Experience as a CAP Project Manager" to favor the selectee. This element was relevant to the job, and Complainant has not shown that it was added to discriminate based on a protected basis.
Next, Complainant disagrees with the AFOD considering the IAE CAP statistics for applicable candidates only for fiscal year 2009, rather than going back for a longer period. He argues that from fiscal years 2006 through 2009 he worked 1354 cases, while the selectee worked 1100 during this time period. Complainant has not shown that giving more weight to recent performance was based on discrimination. In any event, fiscal year 2006 began on October 1, 2005, and the selectee was not transferred to the Castle Point office until September 2007, so the selectee's numbers indicate higher productivity than Complainant during the entire time they were both at Castle Point.
Complainant argues that since 2005 Hispanics have not been promoted to Deportation Officer positions at Castle Point, albeit two have placed therein without promotion. He does not provide any statistical information upon which an inference of discrimination could be made, and the Agency has persuasively explained why it chose the selectee.
Complainant argues that the way the Agency responded to his discovery requests, in terms of its initial effort to limit information released in a document evidences discrimination. We disagree. This has no bearing on what management's motivations were during the selection process.
We agree with the Agency's argument that Complainant has not proven discrimination. The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2013
__________________
Date
1 The appeal was filed by mail. The postmark was illegible.
2 Two candidates were tied for third place. The panel broke the tie listing the one who worked longer as an IAE.
3 The selectee took a downgrade to GS-7 to get the transfer.
4 The AFOD stated this involved acting as the lead agent by testifying to a Grand Jury, obtaining criminal complaints, obtaining and executing criminal arrest warrants and indictments, and completing required ongoing prosecution reports in the law enforcement database.
5 The AFOD stated that the selectee provided project oversight on these projects with responsibility for their outcome, a job function historically performed by a Deportation Officer.
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0120113596
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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