U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Karen N.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2021000580 Hearing No. 520-2020-00002X Agency No. HS-ICE-02539-2017 DECISION On October 14, 2020, Complainant timely 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 24, 2020 final order concerning her 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 At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer, GS-1801-12, with the Agency’s Enforcement and Removal Operations section at the Boston Field Office in Burlington, Massachusetts (ERO Boston). On December 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her: 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. 2021000580 2 1. on the bases of sex (female) when she was not selected for an acting Supervisory Detention and Detention Office (SDDO) position in Burlington, Massachusetts, announced in an office-wide email; and 2. on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when she was not selected for the position of Supervisory Detention and Detention Office in Burlington, Massachusetts, advertised under Vacancy Announcement Number LAG-FBO-2000799-CJH-086 (2000799). Subsequently, the Agency accepted the foregoing claims of discriminations based on sex and reprisal and then conducted an investigation into the matter. Claim 1 - Acting SDDO Position The investigation showed that ERO Boston announced a temporary 11-week assignment as Acting SDDO through a June 30, 2017 office-wide email. This position did not involve any increase in pay or grade. As an acting position, it also did not have any time in grade requirements. Applicants were requested to submit “a memo detailing experience and qualifications” for consideration. The Field Office Director (FOD) used a panel of two males and one female to review the memos, although FOD was the selecting official. Complainant submitted both a memo and her resume; however, the panel did not review her resume since it had not been requested in the email announcement. The panel considered the applicants’ 1) operational knowledge, 2) previous experience working in the Secure Communities component, 3) leadership, and 4) communication skills. The panel members were unaware of any protected activity when they made their recommendations on July 11, 2017. Complainant did not engage in protected activity until August 25, 2017. A total of 12 candidates (including Complainant) submitted memos. Two panel members (one male and one female) recommended the (male) selectee (Acting Selectee) and one panel member (male) recommended Complainant. FOD testified that he selected the Acting Selectee based on the recommendations of the panel members. He further testified that most of the applicants met the qualifications for the position, but he believed the Acting Selectee met the qualifications to a higher degree than other candidates based on the recommendation of the panel. Claim 2 - Permanent SDDO Position The investigation also showed that Complainant applied for a permanent SDDO position under Vacancy Announcement LAG-FBO-2000799 on October 4, 2017, using the website USA Jobs. In accordance with the guidance set forth by ERO, a five-member panel was formed to evaluate the applicants. Four of the panel members were solicited from Areas of Operation (AORs) outside Boston. All five panel members were male. The female panel member from the Acting SDDO position was not a member of the panel and she did not participate in the hiring for the permanent SDDO position except for ministerial duties, such as sending resumes to the panel for review. On October 29, 2017, one of the panel members, Unit Chief, became Complainant’s second line supervisor. 2021000580 3 The panel used a two-phase process. Phase I and II were the interview and the writing exercise. Supervisory reference checks were conducted and combined to the Phase I/II scores to create a final interview score. Finally, the resume review tally was added to the final interview score to compute the final overall score. The panel members individually scored the 21 candidate resumes based on specified criteria from the Leadership Career Progression for Law Enforcement handbook. The interview panel asked each of the 12 interviewees the same ten questions and graded their responses on a ten-point scale. The written exercise, worth 10 points, asked the candidate to draft an executive summary on an immigration issue. Three panel members (who did not include the Unit Chief) scored the writing exercise. Complainant scored 3 points lower than the selectee (Permanent Selectee) in the writing exercise. One of those panel members also conducted the supervisory reference checks. The 10-point scale reference checks yielded no appreciable difference in scoring between Complainant and the Permanent Selectee. Complainant scored third in the total rankings by the recommendation panel. The final overall weighted score for the Permanent Selectee was 83.43 and for Complainant was 69.95. The panel recommended Permanent Selectee for the position because his overall score was highest based on his performance at the interview, his resume, and writing sample. Once the panel recommendation was sent to FOD, he delegated the selection authority to the Acting FOD. FOD communicated to Acting FOD his practice of deferring to the panel’s recommendation. Acting FOD selected Permanent Selectee for the permanent SDDO position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 27, 2020, motion for a decision without a hearing and issued a decision without a hearing on August 21, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant then filed the instant appeal. On appeal, Complainant contends summary judgment was not appropriate because there are genuine issues of material fact in dispute. Complainant contends her deposition testimony established the genuine issues of disputed material fact. She points specifically to the fact that she had “significantly more experience” than the selectees for both positions and she contends she was not just well qualified, but the best qualified person for the positions. She states the scoring was subjective and not based on objective testing and that the scoring was done by panels which “may or may not” have been influenced by her supervisors. Complainant contends the males selected for the positions “did not have sufficient experience” and were less experienced. She further contends her non-selection for the permanent SDDO position was retaliatory and resulted from Complainant filing a complaint about the Acting SDDO selection. In support of this, Complainant points to her testimony that the Agency in general and specifically the office where she worked had a practice of discrimination against female employees. 2021000580 4 Complainant contends the Agency did not establish legitimate, nondiscriminatory reasons for not selecting Complainant, and that, at a minimum, Complainant established that there are genuine issues of material fact as to the Agency’s proffered legitimate, nondiscriminatory reasons. She also states that the harassing conduct directed at Complainant and her differential treatment further establishes the gender discrimination. The Agency contends on appeal that the record has been adequately developed and there are no material facts in dispute or genuine issues of credibility. The Agency further contends the AJ correctly found that the Agency had articulated legitimate, nondiscriminatory reasons for its selections and Complainant had not shown evidence of differential treatment or discriminatory animus. The Agency noted that Complainant asserts only conclusory opinion statements from her own deposition while asserting they are genuine material facts. The Agency also asserts that the AJ correctly found that Complainant’s mention of a hostile work environment claim is an issue beyond the scope of this case because it is not an accepted issue, and Complainant did not request that the claims be amended to include such an issue. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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, while Complainant has asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Prior to summary judgment, Complainant did not respond to or dispute any of the material facts set forth in the Agency’s Motion for A Decision Without A Hearing. On appeal, Complainant states her deposition testimony shows there are disputed facts. 2021000580 5 However, as noted by the AJ, she has not produced any evidence beyond her own subjective belief that the selection panels or the selecting officials discriminated against her based on sex and she has shown no evidence of differential treatment beyond her own speculation. 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 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). 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). The prima facie inquiry may be dispensed with where the agency has articulated legitimate, nondiscriminatory reasons for its conduct. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Aff., EEOC Request No. 05950842 (Nov. 13, 1997). In regard to both claims, assuming arguendo, that Complainant established a prima facie case of disparate treatment on the basis of her sex and in reprisal for prior EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. In terms of Claim 1, the Acting SDDO position, the Agency articulated that Complainant was qualified but the Acting Selectee was best qualified and his application memo was more fully developed than Complainant’s. The solicitation for the Acting SDDO position stated the Agency was looking for a Deportation Office who was “experienced in CAP and/or at large enforcement activities, to include writing NTAs to serve as an acting SDDO for an 11 week temporary assignment to the Secure Communities Unit.” (ROI, p. 123). One panel member testified that the panel “was looking for an individual with a good working knowledge of the Secure Communities Unit to start up the operation with minimal difficulties. We sought an articulate candidate who had good communication skills.” (ROI, p. 231). She further stated that Acting Selectee “articulated that in addition to having previously worked in the [Secure Communities] Unit, he had the greatest expertise within the unit as a subject matter expert. Additionally, on numerous occasions he briefed other DHS component managers about the operations of the [Secure Communities] unit. He prepared a memorandum that demonstrated a high level of writing skill. Furthermore, he had worked in more agency units than the Complainant.” (ROI, p. 233). Another panel member noted he placed a specific emphasis on candidates with the most Secure Communities experience. (ROI, p. 271). However, Complainant “did not possess extensive Secure Communities experience compared to other candidates.” 2021000580 6 He also noted that Complainant did not possess the most extensive, well-rounded experience in multiple units compared to other candidates, she did not possess the most extensive leadership experience compared to other candidates, her application memo was lacking in detail of experience and qualifications compared to most other memos, and she failed to demonstrate attention to detail by submitting both a memo and a resume when the solicitation only called for a memorandum. (ROI, p. 272). The third panel member testified that he did review Complainant’s resume and he felt that she had far more experience in Secure Communities, therefore he recommended Complainant for the position. FOD, the selecting official for the Acting SDDO position, testified that he spoke to the panel members and he believed the Acting Selectee “met the qualifications to a higher degree than the others based on the recommendation of the independent 3-person panel.” (ROI, p. 180). He stated he went with the majority recommendation and that Complainant’s sex was not a factor in her non-selection. Similarly, in terms of Claim 2, the permanent SDDO position, again assuming arguendo that Complainant has proved her prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for her non-selection. The Agency stated that Permanent Selectee was selected because he achieved the highest score, and he scored higher than Complainant (who was ranked third based on scores). The record reflects that Permanent Selectee scored equal to or higher than Complainant in all components of the scoring. The 2012 ERO Leadership Succession Plan process was used to score the applicants and make the selection as required by ERO Headquarters. Complainant met all criteria and qualifications for the position, however, based on the resume review, interview, and writing exercise, she did not demonstrate that she was the most highly qualified candidate for the position. (ROI, p. 307). The Permanent Selectee outlined communication skills and experience during his interview that made him the most qualified selection for the position. (ROI, p. 313). One panel member indicated that Permanent Selectee scored considerably better on the interview than not just Complainant, but the rest of the interviewees as well. (ROI, p. 350). This is reflected in the scoring matrix. Ultimately, Permanent Selectee score significantly higher than Complainant in the interview and a few points higher in the writing sample and resume review. Complainant did score higher than Permanent Selectee in the supervisory reference check, but only by 0.35 points. All of the panel members indicated that neither Complainant’s sex nor her prior EEO activity were factors in her non-selection. Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We find Complainant has failed to do so. A complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2021000580 7 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). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Complainant has asserted that she had superior experience and more years of experience than either of the selectees. However, experience was not the only factor considered by the Agency, and both Acting Selectee and Permanent Selectee had considerable relevant experience. The Acting Selectee demonstrated he was qualified and he exhibited superior performance on the written memo. The Permanent Selectee was qualified and he demonstrated superior performance on the interview and writing sample. Complainant has not demonstrated that these additional factors are “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 also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). While Complainant may disagree with the selection decisions of the Agency, the record does not establish that her qualifications were plainly superior to that of either Acting Selectee or Permanent Selectee. Although Complainant argues the scoring was subjective, she has not provided any evidence which shows that reliance on the scoring was discriminatory or pretextual. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). While Complainant has alleged that the Agency acted discriminately, the record simply does not provide any evidence that the selection was motivated in any way by her sex or prior EEO activity rather than the submitted memos and the scoring of the candidates based on their interviews, writing, samples, and resumes. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Therefore, we find Complainant has failed to establish her claim of discrimination for either Claim 1 or Claim 2. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2021000580 8 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). 2021000580 9 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 March 17, 2022 Date
