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

Equal Employment Opportunity Commission

May 27, 2016

0120141745 (E.E.O.C. May. 27, 2016)

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

Kyle S.,1
Complainant,

v.

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

Appeal No. 0120141745

Agency No. HS-ICE-22919-2012

DECISION

The Commission accepts Complainant’s appeal from the March 7, 2014 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’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 a Detention and
Deportation Officer at the Agency’s Enforcement and Removal Operations facility in Kansas
City, Missouri. On May 16, 2012, the Agency posted a vacancy announcement for a vacant
Supervisory Detention and Deportation/Field Office Director position in Dallas, Texas. On
May 21, 2012, Complainant applied for the position on the USAJOBS website. The
application’s Assessment Questionnaire instructions explained that applicants who had
permanently held a position in the competitive service with promotion potential at or above
GS-15 could be referred for selection without competition under the Agency’s merit promotion
procedures. Question 59 asked applicants whether the applicant ever permanently held a
position in the competitive service with promotion potential at or above GS-15 and informed
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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the applicant that it would be used to determine whether the applicant could be categorized as a
noncompetitive eligible candidate. Complainant responded to Question 59 in the negative.

Complainant and seven other applicants appeared on the certificate of qualified candidates for
competitive selection. Additionally, seven candidates appeared on the certificate of qualified
candidates for noncompetitive selection. Management convened an Executive Career Board to
interview and rate the best-qualified candidates. On June 26, 2012, the Recommending
Official (RO) recommended the noncompetitive selection of the Selectee. The Executive
Career Board concurred with the recommendation and the Selectee was selected. On July 23,
2012, Complainant learned that he was not selected.

On September 21, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (White/association with wife who is West Indies
Indian), national origin (American Indian), sex (male), age (49), and in reprisal for prior
protected EEO activity when, on July 23, 2012, he was not selected for the position of
Supervisory Detention and Deportation Officer/Field Office Director advertised under Vacancy
Announcement No. LAG-ERO-659387-MA-15.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
respond within the timeframe provided in 29 C.F.R. § 1614.108(f), 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 reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Namely, management officials stated that
Complainant was not selected because the Executive Career Board opted to recommend
selection from the certificate of qualified applicants for noncompetitive selection, which did not
include Complainant’s name.

In attempting to establish that the Agency’s reasons were pretextual, Complainant argued that
management circumvented its selection procedure when it selected the Selectee without having
the Executive Career Board interview the best qualified candidates, score them, and forward
the highest-scoring candidate's name to the selecting official. The Agency determined that
although selecting officials could interview applicants referred as best qualified under the Tri-
Bureau Merit Promotion Plan, nothing in the Plan mandated interviews. Moreover, the record
reflected that management was entitled to select from any appropriate certificate, and
2 The record reflects that Complainant attempted to amend his complaint on August 19, 2013,
to include an additional non-selection claim. Commission records indicate that the Agency
subsequently processed the claim as a separate complaint (Agency No. HS-ICE-02348-2013),
which is currently pending appeal before the Commission. As a result, the claim will not be
addressed in the instant complaint.

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management opted to select from the certificate of candidates qualified for noncompetitive
selection.

Additionally, Complainant argued that he was more qualified than the Selectee. The Agency
found that the record reflected that the Selectee met the eligibility requirement for
noncompetitive selection for the vacancy (at least one year in a permanent position at or above
the GS-15 level) while Complainant did not. Furthermore, the Selectee's qualifying experience
was in a position similar to the vacancy in question (Deputy Field Office Director) and she was
already located in the same division as the vacancy (Field Operations). In contrast,
Complainant was located in a different Division (Reparation). As a result, the Agency
concluded that Complainant failed to show that management’s reasons for its actions were
pretextual. Accordingly, the Agency found that Complainant had not been subjected to
discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that management officials circumvented its selection process
when they selected the Selectee. Further, Complainant argues that his qualifying experience in
a different division program area and office made him better qualified as he would have varied
program experience. Additionally, Complainant claims he has presented sufficient evidence
that would leave a reasonable person to believe that the Agency’s motives were discriminatory
and retaliatory. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

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 he 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 him. More specifically, while Complainant was one of the highest-
ranked candidates on the competitive certificate, RO and the Executive Career Board decided

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to make a selection from the noncompetitive certificate. ROI, at 70, 112. The Agency’s Tri-
Bureau Merit Promotion Plan allowed for selection officials to select from the best-qualified
certificate or a noncompetitive source. Id. at 158-67. In this case, selection officials made a
selection from the noncompetitive certificate and chose the Selectee. Id. at 68.

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 his non-selection claim.

Complainant claims that he was better qualified for the position and that the Agency
circumvented its selection procedures. As discussed above, the Agency’s Merit Promotion
Plan provided that the Agency could interview candidates from the best-qualified candidates,
but it was not required to do so. Further, the Plan allowed selection officials to choose a
candidate from any applicable certificate. Thus, the Commission finds that the Agency’s
actions were permissible under its Tri-Bureau Merit Promotion Plan. Furthermore, the
Commission finds that Complainant failed to show that his qualifications for the position were
plainly superior to those of the Selectee. In this case, the Selectee had attributes that justified
her 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 or retaliatory 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 he 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.

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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.
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.

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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

May 27, 2016
Date