Nevada R.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Oct 14, 2016

0120140912 (E.E.O.C. Oct. 14, 2016)

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

Nevada R.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120140912

Agency No. HS-CIS-01147-2013

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated December 24,
2013, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision
finding no discrimination.

BACKGROUND

In her complaint, dated June 17, 2013, Complainant alleged discrimination based on race
(Hispanic), color (brown), national origin (Mexican), sex (female), age (over 40), parental
status, and in reprisal for prior EEO activity when she was not selected for the position of
Immigration Services Officer, GS-1801-13, Level 3, located at the California Service Center,
as advertised under Vacancy Announcement No. CIS-708449-WSC. After completion of the
investigation of the complaint, Complainant requested a final Agency decision without a
hearing. The Agency issued its final Agency decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.

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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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 (EEO MD-110), Chap. 9 § 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged nonselection. During the relevant time period, Complainant was
employed as an Immigration Service Officer, GS-12, at the Agency’s California Service Center
in Laguna Niguel, California. Complainant applied for the GS-13 Immigration Service Officer
position in August, 2012, but was not selected.

The Agency stated that two management officials reviewed and evaluated eligible applicants’
information and gave numerical ratings for the applicant’s resume, skills and knowledge, and
supervisory recommendation. Those applicants, who received a total score of 20 or above in
the foregoing three areas, were referred for interviews. Complainant received the total score
of 11.5, i.e., 6 points for her resume, 4.5 points for her skills and knowledge, and 1 point for
her supervisory recommendation and she, thus, was not referred for an interview and
ultimately was not selected. The Agency ultimately made selections, i.e., 35 selectees in
November, 2012, and February, 2013, based on their interview score in addition to the scores
in the three areas, described above.

Complainant’s supervisor (S1) stated that she gave her supervisory recommendation for the
position at issue to only two employees, Complainant and her coworker. With regard to
Complainant’s recommendation, S1 indicated that S1 gave her only one point rating for the
position at issue because her work product was deficient; she needed a high level of
supervisory review; she had difficulty understanding the form types and regulatory
requirements, as well as doing independent legal research; she lacked the ability to identify
benefit fraud; and she had difficulty organizing her workstation and maintaining and
completing her files in a timely manner.

S1 indicated that she gave Complainant’s coworker the highest possible supervisory
recommendation of 10 because she had great depth of knowledge and skill, as well as her
initiative in applying her technical expertise to the most complex cases. The record indicates
that the coworker: received a total score of 26.5 in the three areas; was referred for interview;
received the score of 3.8 for her interview (interview score ranged from 1.3 to 4.8); and was
ultimately selected for the position.
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After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, Complainant failed
to show that her qualifications for the position were plainly superior to the selectees’
qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). We note that parental status is not a basis that is protected under EEOC laws or
regulations. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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).

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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

October 14, 2016
Date