U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elliott D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021001283 Hearing No. 480-2020-00355X Agency No. HS-CIS-01875-2019 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 November 3, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency worked as an Immigration Services Officer-GS-12 in Laguna Niguel, California. On September 16, 2019, Complainant filed a formal EEO complaint. Therein, Complainant claimed that the Agency discriminated against him based on race (Caucasian), sex (male), color (White), disability, age, and in reprisal for prior protected EEO activity (prior EEO cases). 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. 2021001283 2 By letter dated October 30, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claim: On June 21, 2019, [Complainant was] notified [he was] not selected for an Immigrations Services Officer position at the California Service Center under vacancy announcement CIS-10408112-SCO.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On September 11, 2020, the AJ issued a Notice of Intent to Issue Summary Judgment (Notice) and provided the parties an opportunity to respond. Therein, the AJ reasoned that assuming arguendo that Complainant established a prima facie case of discrimination and/or retaliation, the Agency articulated a legitimate, nondiscriminatory reason for its action. The AJ found that the resumes of Complainant and the other applicants were reviewed by three Section Chiefs. The AJ stated that the panelists reviewed resumes which had the applicants’ names redacted. According to the AJ, resumes were scored by the panel and applicants who received a 3.10 or higher advanced to the interview. The AJ found that Complainant received a score of 2.93 during the resume review stage which prevented him from advancing to the interview stage. AJ Decision at 4. The AJ further found that Complainant failed to establish that the Agency’s reason was pretext for discrimination and/or retaliation. Specifically, the AJ set forth that “even if resume reviewers could identify Complainant, the record…[does not] demonstrate that his resume demonstrated him to have superior qualifications to those applicants who did advance to an interview in a manner that would cast doubt on the Agency’s reasons for the non-selection.” AJ Decision at 5. The record reflects that neither party responded to the AJ’s Notice. On September 30, 2020, the AJ issued a decision without a hearing finding no discrimination for the reasons set forth in her Notice. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant asserts that he is more qualified than some of the selectees. Complainant asserts that he wants to request discovery. Complainant asserts that his military veteran’s preference was ignored in this process. Complainant further asserts that he believes the process by which temporary promotions/details for the Immigration Services Officer position are filled is discriminatory. 222 The record reflects that approximately twenty applicants were selected for the vacancy. 2021001283 3 ANALYSIS AND FINDINGS 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. (Nov. 9, 1999) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 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. 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. Upon review of the record, we find that the AJ properly issued a decision without hearing because there is no genuine issue of material fact in dispute. A claim of disparate treatment 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 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. 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021001283 4 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming arguendo that Complainant established a prima facie case of discrimination and/or retaliation, we find that the Agency articulated a legitimate, nondiscriminatory reason for Complainant’s non-selection. The record contains an affidavit from the selecting official (SO). Therein, SO asserts that there were over 100 applicants for the position. Report of Investigation (ROI) at 77. SO stated that the recruitment panel consisted of three section chiefs. Id. SO asserted that Human Resources redacts names of applicants from their resumes prior to forwarding them to the recruitment panel. Id. SO stated that each panelist reviews and scores each resume independently and their scores are then averaged together. ROI at 78. The SO stated that the recruitment panel forwarded applicants with an average resume score of 3.10 or higher to the interview phase of the selection process. ROI at 80. The record reflects that Complainant received an average score of 2.93 for the resume review. ROI at 80, 151. Thus, since his score was below the cutoff of 3.1, he was not advanced to the interview stage of the selection process.3 The record also contains a memorandum from the Lead of the Recruitment Panel to an Agency Official dated April 3, 2019. Therein, the Panel Lead corroborates the selection process set forth in the SO’s affidavit. ROI at 89-96, 111-113. Complainant did not establish that the Agency’s reason for his non-selection was pretext for discrimination and/or retaliation. To the extent Complainant asserts that he is requesting discovery, we find that the record was adequately developed for the AJ to issue a decision. In addition, we note that Complainant failed to respond to the AJ’s Notice. Regarding Complainant’s assertion that the Agency ignored his veteran’s preference in the selection process, the Commission has consistently held that complaints concerning veteran’s preference are not within the purview of the EEO complaint process. See Glenn v. Dep’t of Veterans Affairs, EEOC Request No. 05910927 (Feb. 21, 1992). 3 The record reflects that only applicants with an average resume score of 3.1 or higher advanced to the interview phase. ROI at 99. 2021001283 5 When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant’s qualifications were plainly superior to those of the selectee. Hung P. v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). We concur with the AJ that Complainant has not established that his qualifications were plainly superior to those applicants who advanced to the interview stage. Finally, to the extent Complainant asserts that he believes the process for the selection of candidates to details/temporary promotions for the Immigration Services Officer GS-13 position (months prior to the selection at issue herein) is discriminatory, we note that this claim has not been accepted for investigation. Thus, we decline to address it further herein. We AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. 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. 2021001283 6 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. 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 June 22, 2021 Date
