U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gerald M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2021004491 Agency No. HS-CIS-00329-2020 DECISION On August 8, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 12, 2021 final decision 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. BACKGROUND Complainant worked as a Supervisory Immigration Services Officer, GS-1801-13, at the Field Operations Directorate in Portland, Oregon. On November 20, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Middle Eastern), sex (male), religion (Muslim), and reprisal (prior protected EEO activity) when, in October 2015, Complainant learned he was not selected for the position of Community Relations Officer (CRO), GS-0301-13, advertised under Vacancy Announcement No. CIS-1443853 located at the Agency’s Portland Field Office.2 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 The Agency initially dismissed the complaint for untimely EEO Counselor contact. However, in Gerald M. v. Dep’t of Homeland Sec., EEOC Appeal No. 2020003608 (Sept. 29, 2020), the Commission reversed the Agency’s dismissal and remanded the matter for further processing. 2021004491 2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On March 22, 2021, Complainant requested a final agency decision. On April 15, 2021, however, the Agency remanded the matter for a supplemental investigation. The Agency provided Complainant with a copy of the Supplemental Investigative Report (SIR) and again notified Complainant of his right to request a hearing. On June 9, 2021, Complainant again requested a final decision. In accordance with Complainant’s request, the Agency issued a final decision in which it found that Complainant was not subjected to discrimination or reprisal as alleged. This appeal followed. ANALYSIS & FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Selecting Official (SO) and two panelists (P1 and P2) articulated legitimate, nondiscriminatory reasons for not selecting Complainant for the Community Relations Officer position, namely that Complainant, despite his experience, was not the best-qualified candidate. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). According to SO, P1, and P2, applicants for the position were rated on nine factors: • Ability to interact effectively with stakeholders from a wide array of backgrounds. • Immigration Expertise. • Ability to speak comfortably in front of large audiences on policy and operational matters. • Ability to make complex systems and policies understandable to the public and customers. • Experience planning multifaceted events and juggling multiple projects and priorities. 2021004491 3 • Experience listening to customers, identifying problems, and advocating for their needs when warranted. • Experience leading community discussions on sensitive and potentially controversial topics. • Ability to work effectively with stakeholders and customers, particularly when there is bad news to deliver. • Ability to write well, use correct grammar, and be sensitive to the audience’s needs. Eleven applicants, including Complainant were listed on the certification sent by the Human Resources Office. SO, P1, and P2 reviewed the candidates’ application packages and scored them based on the nine selection criteria listed above. The candidates with the three highest scores were referred for an interview. Complainant did not score in the top three, and consequently, was not referred for an interview. IR 151-54, 156-58, 161-62, 164, 168-69, 277; SIR 149-62, 168-78, 180- 95. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Larraine D. v. Dep’t of Defense, EEOC Appeal No. 2022002980 (Oct. 27, 2022). When asked by the EEO investigator why he believed that his national origin, sex, and prior EEO activity were factors in his nonselection, Complainant responded that the Selectee was female, native-born, and White. He added that he believed that the Selectee was “a lot younger” than him. He reiterated that he was not interviewed for the position despite being the best qualified candidate for the position. In support of his contention, Complainant had prepared thoroughly detailed narratives for the initial and supplemental investigative reports extensively documenting his background, experience, and education. IR 62-74, 77-96, 98, 100, 103, 118, 125, 127, 133-36, 139; SIR 20-34, 40-47. He maintains, in effect that his qualifications for the position are sufficient to establish the existence of a discriminatory or retaliatory motive attributable to either SO, P1, or P2. Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the selectee. Billi D. v. Dep’t of Def., EEOC Appeal No. 2021004238 (Sept. 27, 2022) citing Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). 2021004491 4 Agencies, however, have broad discretion to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility. Santo D. v. Dep’t of State, EEOC Appeal No. 0120172768 (June 28, 2018). See also e.g., Kidd v. Dep’t of the Army, EEOC Appeal No. 01A41617 (June 9, 2006) (The Commission recognizes the Agency's broad discretion to set policies and carry out personnel decisions and does not second-guess the reviewing authority without evidence of unlawful motivation.) According to SO, the Selectee had a master’s degree in public administration, had been a foreign service officer, and had held several high-profile positions in Iraq and Doha. In addition, the Selectee’s supervisor provided an outstanding reference. IR 158. The other two individuals referred for an interview had equally impressive experience. While Complainant’s extensive narratives more than establish that he was highly qualified for the position, he has not shown that his qualifications were plainly superior to those of the Selectee. Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Tammy S. v. Dep’t of the Army, EEOC Appeal No. 2021000578 (May 5, 2022); citing Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Other than his own subjective assertion that he was the best qualified, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that are sufficient to contradict or undercut the explanations of SO, P1, and P2 for not referring him for an interview, which cast doubt upon the truthfulness of these individuals as witnesses, or which tend to show the existence of at least one of the aforementioned indicators of pretext. A complainant's subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. Larraine D., supra. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The weight of that evidence is not enough to establish the existence of an unlawful motive on the part of SO, P1, or P2 with respect to Complainant’s nonselection. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or reprisal occurred. 2021004491 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). 2021004491 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 January 26, 2023 Date
