U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joel P.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020003625 Hearing No. 451-2017-00123X Agency No. HS-ICE-26519-2016 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 May 7, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND During the time at issue, Complainant was employed by the Agency as a GS-12, Deportation Officer in its Special Operation Unit located in San Antonio, Texas. He filed a complaint alleging discrimination and harassment based on race (Hispanic),2 age (over 40), and reprisal when, on May 26, 2016, he learned he was not selected for a GS-1801-13, Detention and Deportation Officer position, advertised under Vacancy Announcement No. LAG-ERO- 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 Commission considers the term, Hispanic, to be a characterization of national origin, not race; accordingly, we will analyze Complainant’s claim as such. 2020003625 2 1596321-DN-022. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ notified the parties that she intended to grant summary judgment in the Agency’s favor. After considering the parties’ responses to her notice, she issued a decision finding that the Agency did not discriminate against Complainant. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination and harassment as alleged. The instant appeal followed. Out the outset, the AJ found that Complainant’s reprisal claim failed as a matter of law because it was based on Complainant’s assertion that eight years before his non-selection he opposed the Agency’s decision to conduct training in a location where an asbestos issue had not been addressed; therefore, the AJ found it was not based on protected EEO activity. The AJ also found that Complainant did not establish a prima facie case of national origin discrimination, because C1, the selectee for the position, was also of Hispanic national origin. Because of the 12- year age difference between Complainant and C1, 56 and 44, respectively, the AJ did find that a prima facie case of age discrimination existed. The AJ noted that Complainant was determined to be qualified for the job, along with 22 other applicants. A1, the Assistant Director for Custody Management, convened a panel of four individuals to evaluate the candidates’ resumes and to select the top two candidates who would be interviewed. According to the record, the panel sought candidates who possessed knowledge or experience in the Alternatives to Detention (ATD) program because the position required that the selected candidate be a subject matter expert in the program. Of the 23 applicants, only four had such experience. Because Complainant did not have prior ATD experience, his application was not ranked, and he was not considered for an interview. C1, however, possessed the required ATD experience, and was ultimately determined to be the most qualified of the four candidates who had experience with the ATD program. According to the record, none of the panel members, nor A1 (the selecting official), had any knowledge of Complainant’s national origin or age at the time the decision was made to select C1. The AJ further found no evidence to support Complainant’s claim that he was subjected to harassment. ANALYSIS AND FINDINGS 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 2020003625 3 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. We find that even if Complainant had established a prima facie case on all alleged bases, the finding of no discrimination was still appropriate. Although Complainant disputed the determination that he had no ATD experience,3 we find that, given the unrebutted testimony that none of the individuals involved in his nonselection were aware of Complainant’s national origin or actual age, even if a mistake was made about his experience it would not indicate pretext or discrimination. Moreover, given the amount of ATD experience set forth in C1’s resume, Complainant cannot establish that there was a disparity in the qualifications between him and C1 “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including 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. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision 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 3 We note in this regard, Complainant’s statement that: (1) ATD was part of his Academy training; (2) as a Non-Detain Officer in Los Angeles, ATD was part of the regular duties, although it was not called that back then; and (3) as a Course Developer Instructor at the Academy, he taught a class to Immigration Enforcement Agents. 2020003625 4 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). 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. 2020003625 5 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 24, 2021 Date
