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

Equal Employment Opportunity Commission

Dec 12, 2018

0120170438 (E.E.O.C. Dec. 12, 2018)

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

Marvin W.,1
Complainant,

v.

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

Appeal No. 0120170438

Hearing No. 560-2016-00093X

Agency No. HS-ICE-23469-2015

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 5, 2016 decision
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. For the following reasons, the Commission AFFIRMS the
Agency’s decision.

ISSUES PRESENTED

Whether the Agency should be sanctioned for its alleged failure to investigate the complaint in the
requisite timeframe, and whether the Agency’s decision correctly concluded that Complainant was
not subjected to age and reprisal discrimination.

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.
0120170438

2
BACKGROUND

At the time of the complaint, Complainant worked as a Deportation Officer, GS-1801-12, for the
Agency in Immigration and Customs Enforcement (ICE), Enforcement and Removal Operations
(ERO), Fugitive Operations, in Kansas City, Missouri.

On June 8, 2015, Complainant filed a discrimination complaint alleging that the Agency
discriminated against him on the bases of age (43) and reprisal for prior protected EEO activity
when:

1. On November 12, 2014, Complainant learned that the Agency had not selected him
for the position of Supervisory Detention and Deportation Officer, GS-13, under
Vacancy Announcement No. LAG-FCH-1174253-BTR-100, in Kansas City,
Missouri; and

2. On February 20, 2015, a proposed organizational restructure and assignment of
duties notification was presented by the Assistant Field Office Director, without
proper Union notification, which downgraded the positions of Deportation Officers
and the Assistant Field Office Director made comments about the Fugitive
Operations Program in Kansas City, which affected Complainant.

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 EEOC Administrative
Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Accordingly, the Agency issued a decision pursuant to 29 C.F.R. § 1614.110(b). Therein it
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

Agency Decision

As to the nonselection claim, the Agency concluded that it had articulated a legitimate,
nondiscriminatory reason for not choosing Complainant. It also concluded that Complainant had
failed to show that the Agency’s reasons for not selecting Complainant were pretextual. In this
regard, the Agency noted that the selecting official, who was Deputy Field Office Director,
determined that the selectee had more job-related experience, interviewed best, and was more
qualified for this vacancy. In making his selection, the selecting official reviewed the
recommendation memorandum, interview notes, and the vacancy matrix before making his
selection. The Agency also noted that affidavits from the interview panelists indicated that the
selectee’s interview responses were better, more detailed, and more complete than Complainant’s
and this resulted in selectee’s higher interview score. In contrast to the Complainant, one panelist
explained that the selectee demonstrated knowledge in all areas of ERO, citing his thorough
responses and examples provided regarding his experience working in the areas of Detained and
Non-Detained Docket.

0120170438

3
The Agency also noted in its decision that documents from the interview record reflected that the
selectee provided responses to his experience in the Non-Detained Docket and Detained Docket
areas which indicated several years of working a “full spectrum” of Non-Detained Docket. The
selectee proffered examples of his proficiency including: order and removals, control custody, stay
adjudication, legal sufficiency, program coordination, and docket management. The selectee also
expounded on his rotation as a Detained Docket officer, noting experiences such as jail inspection,
case monitoring, detainee interviews, and certification of jails for detentions. Conversely,
Complainant’s responses to specific experience in Non-Detained Docket and Detained Docket
were unanimously noted as “worked as a Non-Detained officer for two years,” and had previously
“filled in for a Detained officer.”

Regarding claim 2, the proposed organizational restructuring, the Agency explained in its decision
that the reason it issued its proposal was to adapt to recent changes in ICE priorities, specifically
to increase efficiency by eliminating overlapping areas of responsibilities. The Agency also
explained that although management’s right to assign work and direct employees is non-
negotiable, management in the Chicago Field Office had engaged with the Union to develop
appropriate arrangements and procedures for implementation. The Agency concluded, having also
addressed comments that Complainant alleged were made by Agency officials, that Complainant
had failed to show that the reason for its action was pretextual and motivated by unlawful
discrimination.

CONTENTIONS ON APPEAL

Complainant first argues that a default judgment should be entered in his favor against the Agency
for improper processing of his complaint as a sanction because it did not investigate his complaint
for over 283 days after he first initiated EEO Counselor contact. Regarding his nonselection,
Complainant challenges the choice of the selectee, asserting that the selectee embellished his
resume with suspect claims of supervisory experience and contending that the selectee’s
experience was deficient in every aspect as compared to his qualifications. Complainant continues
to maintain that the organizational restructuring was not a proposal but an active plan which was
to go into effect and that the Agency did not provide the Union with proper notification. He notes
that the plan unilaterally downgraded the job descriptions of Fugitive Operations Team
Deportation officers.

The Agency urges that its decision be affirmed, asserting that it had articulated legitimate,
nondiscriminatory reasons for claims 1 and 2 for which Complainant had not shown pretext.

ANALYSIS AND FINDINGS

Standard of Review

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,
0120170438

4
§ VI.A. (Aug. 5, 2015) (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”).

Complainant’s Request for Sanction

Complainant contends that sanctions should be imposed on the Agency for conducting an untimely
investigation. EEOC Regulations require that the Agency complete its investigation within 180
days of the filing of the formal complaint. 29 C.F.R. § 1614.108(e). A July 21, 2015 Notice of
Partial Acceptance of Formal Complaint (Exhibit C-2) discloses that Complainant filed his formal
discrimination complaint on June 8, 2015. We note that Complainant initiated EEO contact on
March 9, 2015, which is considered his informal complaint. An investigation of the complaint
was conducted from August 2015 to October 2015 with the Agency contracting for investigation
of the complaint on August 27, 2015. ROI at 2; Exhibit G-1. The Agency served the completed
ROI on Complainant and his representative by letter dated December 29, 2015.

Based on the foregoing, we find that the investigation was conducted in a timely manner and
therefore sanctions are not appropriate. Further, our review of the ROI, establishes that the ROI
consists of an impartial and appropriate factual record upon which findings on the claims raised
can be made.

Claim 1

Complainant claims that he was disparately treated based on his age and subjected to reprisal when
he was not selected for the position of Supervisory Detention and Deportation Officer. In the
absence of direct evidence of discrimination, Complainant’s claim of disparate treatment is
analyzed under a three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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. Co. v. Waters,
438 U.S. 567, 576 (1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). A complainant must then show that the agency’s reasons were pretextual, that is, not
the true reasons for its actions.

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).

0120170438

5
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency subjected him to unlawful discrimination. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Complainant claims to have participated in prior protected EEO activity when he was involved in
an Office of Professional Responsibility (OPR) investigation where he made comments about the
supervisor under investigation. The discrimination statutes protect complainants who have
participated in protected activity or who have opposed discrimination. The responsible
management officials who participated in the alleged discrimination were aware of Complainant’s
participation. Complainant must show a causal nexus between the protected activity and the
alleged discriminatory action. Complainant, who is over the age of 40 and who was deemed
qualified for the position, had participated in prior protected activity. The selectee, also deemed
qualified, was under the age of 40 and had not participated in protected activity.

Upon review of the record in its entirety, we conclude that Complainant failed to show by a
preponderance of the evidence that the Agency discriminated against him when it did not select
him for the position which was open to current ICE/ERO employees in the competitive service.
The selecting official, who was the Deputy Field Office Director, chose the selectee because he
received the highest overall score on a Supervisory Detention and Deportation Matrix of the
referred candidates. Also, he sought the candidate who would be flexible, was a problem solver,
and who had supervisory experience.

The record reveals that the ERO Mission Support Specialist entered information from all
candidates identified on the competitive and non-competitive lists into a matrix. Each candidate
received an initial rating based on weighted scores from five categories: military experience (5%),
ICE supervisory experience (10%), education (5%), Deportation Officer experience (20%), and
collateral duties (10%) as documented in their application packages. The highest-ranking
candidates received interviews, and were issued cumulative final scores, which included the
interview (35%), as the sixth weighted factor. The interview panel consisted of the ERO Kansas
City Assistant Field Office Director, the Deputy Chief Counsel, and a Port Director for Customs
and Border Patrol.

The Kansas City Assistant Field Office Director prepared a Recommendation Memorandum for
the vacancy. The letter included a. brief overview of the vacancy selection process, names of 13
candidates not considered, and recommendation narratives for each of the 10 interviewees based
on criteria from the matrix. Of all the candidates, the selectee was the sole interviewee “highly
recommended.” The Kansas City Assistant Field Office Director obtained signed concurrences
from all panelists before forwarding to the selecting official.

A Supervisory Detention and Deportation Matrix of the applicants reveals that the selectee had a
total score of 378 and Complainant scored 376.55. The selectee received the highest overall score
in the matrix and Complainant’s score was the second highest. Both Complainant and the selectee
received the same scores for immigration experience, military experience, ICE supervisory
experience, deportation officer experience and collateral duties experience.
0120170438

6
Complainant scored 4.00 for education while the selectee scored 1.00. Complainant scored 4.33
on his interview and the selectee scored 4.80. All applicants were asked the same questions and
these questions and responses are contained in the record.

Based on the foregoing, we find that the Agency established a legitimate, nondiscriminatory reason
for not selecting Complainant. Complainant must now show pretext. In a nonselection case,
Complainant can establish pretext by establishing that his qualifications were “plainly superior”
to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); Wasser v. Dep’t
of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Complainant has failed to show that his
qualifications were plainly superior. In addition, the record, reviewed as a whole, does not
establish that, more likely than not, the Agency was motivated by discriminatory animus. Absent
discriminatory animus, we have held that we will not second-guess an agency’s personnel
decisions or substitute our judgment for that of an agency. See Shapiro v. Soc. Sec. Admn., EEOC
Request No. 05960403 (Dec. 6, 1996). Pretext inquiry is not concerned with bad judgment,
impeccability, dislike, or a mistake. The focus of pretext inquiry is whether an agency actions
were motivated by discriminatory animus. Here, we find none. Regarding reprisal, the selecting
official denied any awareness of Complainant’s prior protected activity. Even assuming that the
selecting official, or any of the participants in the selection process, was aware of Complainant’s
prior protected activity, the evidence does not establish that this awareness played any role in the
choice of the selectee.

Claim 2

Initially, we find that to the extent that Complainant is claiming that the Agency failed to follow
Union procedures for reorganization, the allegation fails to state a claim for which the Commission
can provide relief. Moreover, there is no evidence which shows that the proposal became effective
which means that Complainant was not aggrieved.

Even if the allegation states a claim and assuming that the proposal became effective, Complainant
has not shown that the Agency’s articulated reason, to adapt to recent changes in ICE priorities
and specifically to increase efficiency by eliminating overlapping areas of responsibilities, was
motivated by discrimination based on age or reprisal. Neither does the action rise to the level of
retaliatory harassment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding of no
discrimination. Complainant has failed to show by a preponderance of the evidence that he was
subjected to unlawful discrimination.

0120170438

7
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).
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.
0120170438

8
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

December 12, 2018
Date