U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Akiko L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary. U.S. Department of Homeland Security (DHS Citizenship and Immigration Services), Agency. Appeal No. 2020004402 Hearing No. 460-2019-00091X Agency No. HS-CIS-00998-2018 DECISION On July 30, 2020, 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 final action 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. For the following reasons, the Commission AFFIRMS the final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Analyst, GS-0301-11, at the Agency’s Houston Field Office in Houston, Texas. On March 5, 2018, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and in reprisal for prior protected EEO activity under 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. 2020004402 2 1. On December 11, 2017, Complainant was notified she was not selected for the Immigration Services Analyst position advertised under Vacancy Announcement No. CIS-10037462-HOU; 2. On April 25, 2018, she received a letter of counseling for failure to follow instructions; and 3. On May 4, 2018, her request to change supervisors was denied. Complainant worked as an Immigration Services Analyst and had two decades of experience as an Analyst. Complainant applied for a promotional opportunity, was qualified, and interviewed, but she was not selected. Her supervisor (Caucasian male) was the recommending official (S1). The selecting official (Caucasian female) (S2) relied on the recommendation memorandum from the selection committee which recommended the selection of the highest rated candidate, who was a Caucasian male. Complainant was ranked fourth of those interviewed. No one on the reviewing panel recommended the selection of Complainant. Complainant averred that she believed she had not been selected based on the recommendation issued to her by her supervisor (S1). She also averred that the selection process was contaminated by the negative influence of her supervisor in the selection process. The record shows the selection process was divided into separate parts: a resume review panel, an interview panel, and a writing sample. The panels were comprised of different individuals. Complainant received a high score based on her resume, but she did not receive the highest overall score. Complainant attributed her non-selection to the recommendation of her supervisor. Her supervisor gave her a favorable recommendation. The selectee, by contrast, received a “Highly Recommended” reference from his supervisor and received a higher interview score. One interview panelist stated that Complainant did not seem to want to be interviewed. Another interview panelist concurred and stated that Complainant did not fully answer interview questions or failed to provide sufficiently detailed responses. Panelists confirmed that the selectee provided much more detailed answers and better demonstrated his experience. Regarding claim 2, the record shows that Complainant received a letter of counseling after she did not complete a task and reported that she had. Her supervisor had to assign the matter to another person to complete. Thereafter, Complainant was issued a letter of counseling, but no discipline. Complainant asserted another individual did not complete the task and was not counseled. Regarding claim 3, the record shows that Complainant requested to be reassigned to a different supervisor. Agency management refused to grant her request, noting it was the policy of the Agency not to permit changes in supervisors. The record shows that the Agency denied a request from two other employees, including a Caucasian male with no prior EEO activity. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 2020004402 3 Complainant timely requested a hearing. The AJ assigned to the case issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant cites to her two decades of immigration experience to prove she was plainly superior. She argues that the Agency leap-frogged over African-American female candidates to select a Caucasian male, with only two years of experience. She argues that the AJ erroneously relied on a process that was “contaminated,” because she said the selection process was administered by only one person, whom Complainant said was not credible and whom she blamed for her non-selection, based on his lower supervisory recommendation. Accordingly, Complainant requests that the Commission reverse the final action. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. We will assume that Complainant established a prima face case of discrimination and reprisal. In this case, however, the Agency articulated its legitimate, non-discriminatory reasons for its actions. 2020004402 4 The record reveals that the selecting official relied on the recommendation from the review panel, which rated the selectee higher than it rated Complainant. It is undisputed that the selectee received a higher overall score of 104, while Complainant was rated at 87 points. In a nonselection case, pretext may be demonstrated in a number of ways, including a showing that Complainant's qualifications are “plainly” superior to those of the selectee's. Bauer v. Bailar, 647 F.2d 1037 (10th Cir. 1981); Williams v. Department of Education, EEOC Request No. 05970561; Jenkins v. Department of the Interior, EEOC Request No. 05940284 (March 3, 1995). While Complainant notes that she had more overall years of experience than the Selectee, the Commission has previously held that greater years of experience do not necessarily make an individual more qualified for a particular position. We recognize that Complainant challenged the participation of S1 in the resume review process. The record, however, shows that the resume review panel rated Complainant higher than the selectee regarding her resume. She also questioned the credibility of S1 because his recommendation contributed to her not being selected. Even if he had granted Complainant the same supervisory higher recommendation, it would not have raised her score to be higher than the selectee based on interview scores. Interview panelists affirmed that Complainant’s interview performance was not as strong as the selectee’s as she failed to provide sufficiently detailed answers and was not as responsive as the selectee. Regarding claim 2, on March 22, 2018, S1 instructed all analysts, including Complainant, to update their reports pursuant to instructions they were provided. Complainant notified S1 that she had made the changes, but S1 later discovered that Complainant had not made the necessary changes. On March 29, 2018, S1 again instructed Complainant to complete the updates before the end of her tour. Complainant again failed to complete the assigned task and left work. Complainant was off work the next day; therefore, S1 had to ask another employee to complete Complainant’s reports. As a result, Complainant’s supervisor issued her a letter of counseling to address the incident. Regarding claim 3, the Agency’s standard policy did not allow employees to switch supervisors and there were no other supervisors within the Houston Field Office that supervised analysts outside of their unit. There was no evidence that any other employee outside of her protected groups had been permitted a reassignment. Management had refused a similar request of a Caucasian male. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision. 2020004402 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004402 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 December 2, 2021 Date
