U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cathy M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2020004420 Hearing No. 520-2018-00035X Agency No. HS-CIS-00386-2017 DECISION 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 September 14, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Immigration Officer, Level 2, at the Agency’s USCIS New York Field Office in Newburgh, New York. On January 3, 2017, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race (Black/African American), sex (female), and disability (perceived) when, on October 28, 2016, the Agency notified Complainant that she was not selected for the Immigration Services Officer Level 3 position advertised under vacancy 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. 2020004420 2 announcement CIS-1765475-D03, at the New York District Office, Queens Field Office, and the Holtsville Field Office. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On May 21, 2019, the Agency filed a motion for summary judgment. After receiving a response from Complainant, the AJ issued a decision by summary judgment in favor of the Agency on August 11, 2020. On September 14, 2020, the Agency issued its final order implementing the AJ’s finding of no discrimination. The instant appeal from Complainant followed.2 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). 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. 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. 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 her favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 2 The Agency had forty calendar days from August 11, 2020, to issue a decision accepting or rejecting the AJ’s decision. However, Complainant prematurely filed the instant appeal on August 2, 2020. Nevertheless, on September 14, 2020, the Agency issued a decision implementing the AJ’s finding of no discrimination. Therefore, we find that the appeal has been perfected and is appropriately before the Commission. 2020004420 3 For complainant to prevail, she must first establish a prima facie 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. See 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. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary’s Honor Center 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. See U.S. Postal Service Boarwd of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant testified that she included her SF-50 on her application for the subject position which indicates that she was initially hired as a disabled veteran. Complainant asserted that the Agency was aware that she had a service-connected disability even though Complainant acknowledged that the Agency was unaware of the specific details of her disability. As a result of her disability, Complainant stated that she speaks very slowly and has shortness of breath. We presume for purposes of analysis only, and without so finding, that Complainant is an individual with a disability. The AJ properly determined that Agency articulated legitimate, non-discriminatory reasons for not selecting Complainant for the Immigration Services Officer Level 3 position advertised under vacancy announcement CIS-1765475-D03 at the New York District Office, Queens Field Office, and the Holtsville Field Office (located on Long Island, New York).3 The Selecting Official (SO) (White, male) served on an interview panel consisting of three other panel members (P1 - White, male; P2 - White, male; and P3 - White, female) who interviewed candidates for positions at the New York District Office and Queens Field Office. The SO explained that all candidates, including Complainant, were asked two technical questions (one on naturalization and the other on adjustment of status) and they gave a presentation on an immigration subject of their choosing. The SO noted that all candidates were asked to forward their presentations ahead of interviews. 3 There was a total of seven vacant GS 13 positions located at the various offices. 2020004420 4 However, Complainant failed to submit her presentation before her interview which resulted in the SO asking her, during the interview, if she had her PIV card with her so that she could login the computer system and upload her presentation. The candidates were scored based on their resumes, interviews, and writing samples and the highest scores were used to determine selections. The panel members denied any knowledge of Complainant’s perceived disability, and they further denied that Complainant’s non-selection was based on her race, sex, or disability. Regarding Complainant’s interview performance, P3 testified the Complainant failed to correctly answer both technical questions, and Complainant’s presentation was unorganized and included inaccurate information. The record reflects that Complainant acknowledged during her interview that she did not know to how to adjudicate certain naturalization forms. P3 further testified that Complainant gave an incorrect response, instead of acknowledging that she did not know the answer but would research the matter later. P3 also noted that Complainant’s oral communication skills were “subpar” compared to other candidates who answered questions “in an appropriate fashion.” A copy of the overall totals for each candidate for the New York District and Queens Field offices, indicates that Complainant received a resume score of 10, an interview score of 8, and a writing score of 4, for an overall total of 22 points, making Complainant’s score the second lowest out of the seventeen candidates who were interviewed. In contrast, the five candidates and two alternates selected to fill position vacancies at these offices had respective individual overall scores of 53, 53, 45, 43, 42, 42, and 40. The record further reflects that the candidates who interviewed for the New York District and Queens Field offices did not interview for the Holtsville Field Office. Rather, the candidates’ interview scores were transferred, and the Holtsville Field Office combined these scores with the candidates’ resume and writing scores to determine a selection. Because Complainant applied to all three offices, her interview scores were transferred, and consequently, Complainant did not meet any of the Holtsville Field Office selection panel members. Complainant received an overall score of 26. However, the two Selectees received an overall score of 55 and 49. After careful consideration of the record, we conclude that neither during the investigation nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, sex, or perceived disability. CONCLUSION The Administrative Judge's issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2020004420 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). 2020004420 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 16, 2021 Date
