[Redacted], Bennett W., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

May 2, 2022

Appeal No. 2020004999 (E.E.O.C. May. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bennett W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020004999 Hearing No. 570-2018-00298X Agency No. HS-CBP-01540-2017 DECISION On September 8, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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. For the following reasons, we AFFIRM the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Protection Officer (International Trainer/Advisor), GS-1895-13, at the Agency’s Office of International Affairs (INA),2 International Technical Assistance Division, in Washington, D.C. 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. 2 As the parties refer to the Office of International Affairs as “INA” and not “OIA,” we will do the same. 2020004999 2 On July 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic/Mexican),3 sex (male), color (brown), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On May 1, 2016, the Agency rescinded Complainant’s selection for an Acting Branch Chief, GS-1895-14 position, within the International Technical Assistance Division (ITAD) prior to his completion of the full assignment; 2. On June 21, 2016, the Agency rescinded Complainant’s selection for an Acting Branch Chief, GS-1895-14 position, within ITAD prior to his completion of the full six-month assignment; 3. On May 5, 2017, the Agency rescinded Complainant’s selection for a 120-day temporary detail assignment to the position of Acting Branch Chief, GS-1895-14, within ITAD; 4. On June 29, 2017, Complainant learned that he was not afforded the opportunity to compete or given consideration for a temporary assignment to the position of Chief at Dulles International Airport; rather, he learned another employee was appointed to the position without competition; and 5. On August 24, 2017, Complainant’s request to extend his two-year Not-To-Exceed (NTE) assignment with INA was denied. 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). Complainant requested a hearing. Complainant subsequently filed a motion on August 30, 2018, seeking to amend his complaint to include the following claim of discrimination on the bases of national origin, color, sex, and reprisal when: 6. On July 25, 2018, Complainant was notified that he had not been selected for the INA Branch Manager position after being told he was both qualified and eligible. 3 Though Complainant also alleged discrimination on the basis of his Hispanic/Mexican race, we note that the Commission has long viewed these terms to be representative of national origin, rather than race. See Angela F. v. U.S. Postal Serv., EEOC Appeal No. 2019003846 (Feb. 4, 2020) at fn. 2. 2020004999 3 The AJ assigned to the matter ultimately granted Complainant’s motion, and thereafter, the parties engaged in discovery. Following discovery, the Agency filed a motion for a decision without a hearing on the grounds that Complainant failed to prove his allegations of discrimination or show that there were genuine issues of material fact to warrant a hearing. Complainant opposed the Agency’s motion and vehemently argued that a decision without a hearing was improper because he had “established both a prima facie case of discrimination and retaliation under Title VII and that there are genuine disputes of material facts, making summary judgment improper.” Complainant’s Opposition to Agency’s Motion for Summary Judgment at 1. Specifically, Complainant argued that the Agency’s articulated reasons for taking the alleged actions were illegitimate, unsupported by the facts, and contrary to the Agency’s collective bargaining agreement (CBA) and standard operating procedures. Id. at 13-29. Furthermore, Complainant maintained that the Agency’s articulated reasons were pretext for discrimination. Id. In response to Complainant’s opposition, the Agency filed a reply, which essentially reiterated its position that Complainant failed to prove his allegations. See Agency’s Reply to Complainant’s Opposition to the Agency’s Motion for Summary Judgment. Complainant then filed a sur-reply, wherein he again argued that there were “genuine disputes of material fact, making summary judgment improper.” See Complainant’s Motion to Strike Unsupported or Misrepresentations of Fact, or in the alternative, Complainant’s Motion to Submit a Sur-Reply to Agency’s Reply in Support of its Motion for Summary Judgment. In so arguing, Complainant maintained that the Agency misrepresented the record and supporting exhibits. Complainant further emphasized that the Agency’s articulated facts were not supported by citations to the record. Id. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 1, 2019, motion for a decision without a hearing and issued a decision without a hearing in favor of the Agency on July 27, 2020. In finding no discrimination on claims 1 and 2, the AJ found that the Agency had legitimate, nondiscriminatory reasons for rescinding Complainant’s non-competitive selection for the Acting Branch Chief position because the record showed that the Agency’s actions were in response to a complaint from Complainant’s colleague (Witness) who complained that Complainant’s selection violated Article 38 of the CBA. Having reviewed the record, the AJ found that Complainant failed to persuasively show that the Agency’s articulated reasons were pretext for discrimination. Similarly, in claim 3, the AJ found in their decision that Complainant could not prevail on his claim of discrimination because the record showed that “the Agency bypassed rules to select Complainant [for the Acting Branch Chief position] regardless of his race, color, sex, or EEO activity, and it was only when [Witness] complained that Complainant was selected despite being a permanent employee that the Agency rescinded Complainant’s selection to be consistent 2020004999 4 with its own rules.” The AJ ultimately found no evidence of pretext with regard to the Agency’s articulated explanation. As for claim 4, regarding the temporary position at Dulles International Airport, the AJ found that Witness was selected for the position as part of an EEO settlement agreement. Thus, the AJ concluded that the Agency did not act with discriminatory animus. With regard to claim 5, the AJ found that the Agency did not discriminate against Complainant when it denied his request to extend his two year not-to-exceed assignment because the record showed that the Agency acted in accordance with its policy of rotating trainers every two years to ensure that the trainers were “fresh with current knowledge of, and proficiency in, the latest techniques.” Finally, in claim 6, the AJ found that the Agency had legitimate, nondiscriminatory reasons for not selecting Complainant for the INA Branch Manager position, as the record showed that the selection panel members did not rate Complainant’s resume among the best qualified candidates. In finding no discrimination, the AJ emphasized that the review process was blind and that Complainant “failed to demonstrate that he was better qualified than the selectee.” Based on the foregoing, the AJ concluded that Complainant could not prevail on his complaint. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. On appeal, Complainant contends that the AJ’s finding of no discrimination was based on the Agency’s “misrepresentations of witness testimony as well as its own unsupported exhibit.” He initially challenges the Agency’s contention that the CBA required management to rescind his selection for the Acting Branch Chief position (claims 1 and 2) and maintains that the Agency applied the CBA in a discriminatory and inconsistent manner. For claim 3, Complainant argues that the AJ, in finding that Complainant was not entitled to the temporary detail as an Acting Branch Chief, failed to recognize that the Agency in the year prior, allowed a White male, who, like him, was serving an NTE appointment, to be detailed as an Acting Branch Chief. As for claim 4, Complainant reiterates his belief that the Agency discriminated against him as a Hispanic, male, when he was not afforded the opportunity to compete or given consideration for a temporary assignment at Dulles International Airport. He argues that the Agency discriminatorily promoted and placed Witness, also a Hispanic, male, into that position. 2020004999 5 For claim 5, Complainant maintains that there was no policy or rule in place that prevented the Agency from extending his NTE appointment. He asserts that the Director of the Mission Support Division was the one who discriminatorily injected herself into the process and made the decision to not extend his NTE appointment. Finally, with regard to claim 6, Complainant argues that the record is devoid of any evidence showing that the selectee was plainly superior to him. To the contrary, Complainant maintains that he was similarly situated to the selectee because the selectee, like him, was in an NTE assignment prior to being selected for the INA Branch Manager position. Complainant asserts that he was plainly superior to the selectee. The Agency opposes the appeal and requests that the Commission affirm its final action, as Complainant’s arguments on appeal are simply reiterations of his previously raised arguments. In opposing the appeal, the Agency emphasizes that Complainant failed to present any evidence of discrimination, and that even if the Agency had misapplied the CBA, that alone is insufficient to establish pretext. The Agency also contends that Complainant’s comparators were not similarly situated to him, and that the Agency had legitimate, nondiscriminatory reasons for taking the alleged actions. 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 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 factfinder could not find in Complainant’s favor. Upon review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that there were no material facts in dispute and that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2020004999 6 In reaching this conclusion, we carefully considered Complainant’s contention regarding the manner in which the Agency applied the CBA; however, we agree with the Agency and the AJ that even if the Agency did in fact misapply the CBA, that alone is not evidence of discrimination. We also find no persuasive evidence that management applied the CBA in a discriminatory manner. By Complainant’s own admission, Witness repeatedly filed union complaints challenging Complainant’s noncompetitive selections, which, in turn, forced the Agency to act (claims 1 to 3). See ROI at 168. Given that the rescindments of Complainant’s appointments were predicated on Witness’s complaints, and not Complainant’s protected bases, we conclude that Complainant cannot prevail on claims 1 to 3. We also considered Complainant’s arguments and comparator evidence for claims 4 and 5; however, we agree with the AJ’s decision that Complainant was not similarly situated to his comparators. Furthermore, even if the Agency did not have a policy in rule or place that would have prevented management from extending his NTE appointment, we are disinclined to attribute the non-extension to discrimination given the Agency’s facially plausible explanation for the non-extension, i.e., that it rotated trainers to keep them fresh. While we understand Complainant’s concerns regarding the Agency’s explanation, we ultimately find no persuasive evidence of discrimination. Finally, with regard to claim 6, we find that the preponderant evidence fails to demonstrate that Complainant was plainly superior to the selectee. While we are mindful that Complainant considers his qualifications to be plainly superior to the selectee, we note that Complainant, by his own admission, conceded he did not have the requisite use of force experience, as his area of expertise was in behavioral analysis. See Complainant’s Deposition contained in “Agency’s MSJ Exhibits” at 52. To the extent that the selectee had a disciplinary history, we find such evidence to be insufficient to undermine the selectee’s plainly superior use of force experience. As such, we conclude that Complainant cannot prevail. Accordingly, we AFFIRM the Agency’s final action. 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. 2020004999 7 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). 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. 2020004999 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 May 2, 2022 Date