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

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022001307 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billy L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022001307 Hearing No. 540-2020-00061X Agency No. HS-CBP-00216-2019 DECISION On December 30, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 3, 2021 final order 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 accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chief Customs and Border Protection Officer, GS-13, at the San Luis Port of Entry in San Luis, Arizona. On January 28, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male), age, and reprisal for prior protected EEO activity 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. 2022001307 2 1. On September 30, 2018, Complainant learned he was not selected for a temporary promotion to Watch Commander at the San Luis Port of Entry (POE). 2. On March 21, 2019, Complainant learned he was not selected for the Assistant Port Director (APD) position, GS-1895-14, at the San Luis POE, advertised under Job Opportunity Announcement Number OFO-IMP-10354539-NKE. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. However, on February 17, 2021, the Agency filed a motion for a decision without a hearing. After considering the Agency’s motion and Complainant’s objection, on October 28, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant, through his attorney, argues that the AJ ignored numerous genuine issues of material fact. For example, he states that “in an attempt to rationalize the choice of [the selectee] over Complainant” the Agency identified the selectee’s Tactical Operations experience as an “undisputed fact” but omitted Complainant’s Tactical Operations experience. Another disputed fact, contends Complainant, is whether the selecting officials were aware of Complainant’s age. Regarding the Agency’s proffered legitimate, non-discriminatory reasons, Complainant asserts their blanket denial of his claim is inadequate to meet the Agency’s burden. Moreover, Complainant argues that he has shown pretext because he was later selected for the position and the proffered reasons for his initial non-selection contradicted the reasons given for his subsequent selection. In challenging the Agency’s assertion that the selectee had four more years of experience, Complainant contends that the quality of experience cannot be determined by simply length of time. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. 2022001307 3 A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. Here, Complainant has failed to point to any particular evidence in the investigative file or other evidence of record that indicates such a dispute. Our review of the evidence of record produced during the investigation reflects that it has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003) (AJ may issue a decision without a hearing only after determining that the record has been adequately developed). For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment based on indirect evidence, like the present matter, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2022001307 4 Acting Watch Commander Position In early September, Complainant applied for a temporary promotion to the Acting Watch Commander position. Only Complainant and the Selectee applied. On September 28, 2018, the Selectee was chosen to serve the first 120-day slot. In February 2019, Complainant was selected for the second slot. He served in the position from March 3, 2019 through June 22, 2019. Although Complainant served in the second 120-day slot, there was nothing in the record to suggest that Complainant was harmed by serving during the later time period. Therefore, we agree with the AJ that Complainant was not rendered “aggrieved” by the order of serving as Acting Watch Commander. Moreover, Complainant has not established that he was subjected to unlawful discrimination. Non-selection for APD Positions The record reflects that the Port Director reviewed applications for two APD positions and provided a recommendation to his supervisor, Director of Field Operations. The Director of Field Operations concurred with the Port Director’s assessment of the candidates and approved the Port Director’s recommendations. The Port Director had concerns regarding whether Complainant exhibited the temperament required for an APD. Specifically, the Port Director noted that Complainant resisted operational changes and did not demonstrate the type of problem-solving needed for an APD. Additionally, the Port Director believed that Complainant failed to “address or correct employee misconduct and almost always relies on upper-level managers to do so. This included his tenure as a temporary Watch Commander.” Regarding Complainant’s non-selection for the APD Passenger Operations position, the Agency stated that the Selectee was already a GS-14 and had APD experience, which Complainant lacked. Therefore, the Selectee’s selection was a lateral assignment rather than a grade promotion. Additionally, the Selectee had experience at multiple Ports of Entry. Concerning the APD Tactical Operations Position, the Agency explained that Selectee had approximately four more years of supervisory experience with the Agency than Complainant which was important because the APD position include significant supervisory responsibilities. Moreover, Selectee appeared to have focused his career on Tactical Operations, making him ideal for the APD Tactical Operations position. Specifically, Selectee’s resume showed that he had experience overseeing the Port of San Luis’ Tactical Operation function. Conversely, Complainant’s resume lacked the focused Tactical Operations experience found in his comparator’s resume. Rather, it appeared from Complainant’s resume that his career was more oriented towards the Intelligence, the Joint Operations, and the Passenger Processing fields. The burden now shifts to Complainant, to establish that the Agency’s proffered reasons are pretext for discrimination. To the extent Complainant challenges the Agency's process, we note that this is not evidence of a discriminatory motive. The record indicates that all applicants were measured according to the same criteria. 2022001307 5 We have consistently recognized that an agency has broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997). Here, even if Complainant disagrees with the Port Director’s assessment of his ability to serve at an APD level, the record is clear that the Agency’s reasons for not selecting Complainant were legitimate and unrelated to his protected classes. Specifically, a review of Complainant’s and the two Selectees’ resumes and experiences clearly show that the Selectees were more qualified for the positions than Complainant. Complainant’s contention that he has a superior work history, compared to that of the Selectees, is unsupported by the record and does not establish pretext. See Palmer N. v. Dep't of Defense, EEOC Appeal No. 0120140070 (March 18, 2016) (complainant's subjective assessment of his own qualifications is not evidence of pretext). In a non-selection case, a complainant may show that an employer's reason for the non-selection was pretext for discrimination by demonstrating that his qualifications were “plainly superior” to those of the selectee. Wasser v. Dep't. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). However, Complainant has not done so here. 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 against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022001307 6 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. 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. 2022001307 7 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 31, 2022 Date