[Redacted], Noah S., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Mar 24, 2022

Appeal No. 2021003215 (E.E.O.C. Mar. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Noah S.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021003215 Hearing No. 540-2018-00209X Agency No. HS-CBP-01482-2017 DECISION On May 12, 2021, 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 24, 2021, 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 At the time of events giving rise to this complaint, Complainant worked as a Mission Support Specialist, GS-9, at the Agency’s Customs and Border Protection, Office of Field Operations, Tucson Field Office in Nogales, Arizona. On July 13, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), sex (male), color (Brown), age (51), and in reprisal for prior protected EEO activity when: 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. 2021003215 2 1. On April 26, 2017, he learned that he was not selected for the position of Mission Support Specialist, GS-11, advertised under Job Opportunity Announcement (JOA) Number MHCMP-1870628-SJS; 2. On September 5, 2017, he learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number OFO-MB-10014487-TJC. Complainant also sought to amend his complaint to include the following claims: 3. On May 11, 2009, Complainant was coerced into signing a Last Chance Agreement (LCA); 4. On September 6, 2011, Complainant learned he was initially selected for a GS-11 salary promotion, advertised under JOA Number MHCBPMP- 453474-OC, for a two-week period in 2011, then removed from the position; 5. On or about November 19, 2015, Complainant learned he was not selected for the position of Mission Support Specialist, GS-11, advertised under JOA Number MHCMP-1547653-KDL; 6. On or about August 5, 2016, Complainant learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number MHCMP-1744450-KDL; 7. On or about September 8, 2016, Complainant learned he was not selected for the position of Supervisory Mission Support Specialist, GS-12, advertised under JOA Number: MHCBP-1765184-LAM. See Report of Investigation (ROI) at 163. The Agency dismissed Claims 3 through 7 pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that the most recent allegedly discriminatory act occurred in September 2016, and Complainant waited well beyond the forty-five day time limit to contact an EEO Counselor on May 2, 2017. Additionally, the Agency found that the claims were not addressed in counseling, but raised for the first time in efforts to amend the complaint. See ROI at 164-66. Claims 1 and 2 were accepted for investigation. See id. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 15, 2019 motion for a decision without a hearing and issued a decision without a hearing on April 22, 2021. The AJ found that for claim 1, Complainant did not establish a prima facie case of discrimination based on race, color, sex, or reprisal since the Selectee (S1) is also a Hispanic male and because Complainant’s prior EEO activity occurred sometime in 2015, well over a year prior to the non- selection. Further, the AJ determined that the Agency articulated a legitimate, nondiscriminatory reason for the April 2017 non-selection and that Complainant did not establish that the Agency’s reason was pretext. 2021003215 3 Specifically, the AJ noted Complainant’s contention that the non-selection was due to the LCA he had signed, which addressed allegations of criminal misconduct by Complainant outside of work. As a result of the LCA, Complainant was demoted to a GS-7; required to serve a 30-day suspension; and prohibited from engaging in any other misconduct, including outside of work, for the next two years. See ROI at 474-76. The AJ noted that even if the Agency had relied on the LCA, this was not a protected basis and did not constitute unlawful discrimination. With regard to claim 2, the AJ found that Complainant established a prima facie case based on age, sex, race and color because the Selectee in claim 2 (S2) was outside of Complainant’s protected bases. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the non-selection in claim 2 and Complainant failed to present any evidence of pretext. Therefore, the AJ concluded that Complainant did not prove either non-selection was due to any of his protected bases. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. Complainant filed the instant appeal. CONTENTIONS ON APPEAL Complainant did not present any arguments on appeal. The Agency responds that the AJ correctly found that there were no genuine issues of material fact in dispute and her decision, finding no discrimination, should be affirmed. 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. (Aug. 5, 2015) (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”). 2021003215 4 Procedural Dismissal We will first briefly address the Agency’s dismissal of Claims 3 through 7 pursuant to 29 C.F.R. § 1614.107(a)(2). 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Here, the record indicates that Complainant contacted the EEO counselor on May 2, 2017 regarding his April 2017 non-selection (claim 1). See ROI at 43. However, Complainant did not mention the incidents in claims 3 through 7 at that time, but waited until September and October 2017 to include them as an amendment to his formal complaint. See ROI at 135-39. Complainant explained that he did not notice the pattern of alleged abuse and retaliation until the summer of 2017. We note, however, that Complainant has not raised an allegation of hostile work environment. All the incidents, concerning multiple non-selections and the execution of the LCA, were each a discrete act that triggered the 45-day limitation once Complainant became aware of them. In addition, Complainant acknowledged that he became familiar with EEO time limits during his prior EEO activity. See ROI at 165. Therefore, we find that the Agency properly dismissed claims 3-7 pursuant to 29 C.F.R. §1614.107(a)(2). Summary Judgment Next we must determine whether the AJ appropriately issued the decision without a hearing. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). 2021003215 5 We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not made any arguments to indicate that issues of material fact are in dispute. We find that the AJ properly determined that there are no genuine issues of material fact in dispute and therefore, her issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment based on indirect evidence 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 or she 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. 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. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, the Agency articulated legitimate, nondiscriminatory reasons for both non-selections. With respect to claim 1, the record indicates that no interviews were conducted. Rather, a panel scored the applicants’ resumes, according to six categories including: a willingness to make decisions, the ability to work independently, the ability to work with others, and the ability to manage resources.2 See ROI at 211, 223, 244. 2 We note that the selecting official and recommending official for claim 1 had retired by the time of the investigation and multiple attempts to reach them were unsuccessful. See ROI at 180. 2021003215 6 One scoring panelist noted that Complainant did not receive the best score and further clarified that, while Complainant’s and S2’s resumes received very similar scores, S1’s resume was written more concisely, in the proper format, and with better references. See ROI at 248. Another panelist concurred that Complainant was not selected because his resume did not receive the best score. See ROI at 228. With respect to claim 2, the recommending official (RO) stated that he made his decision based on the applicants’ resumes and their references. See ROI at 192. The RO further explained that S2 was chosen because she had better references, as well as “current operational experience and job task knowledge.” See id. The record also contains Reference Check forms, for both Complainant and S2, reflecting that S2’s references earned the highest mark of “Exceptional” in all categories, whereas Complainant’s was scored as “Above Average” in most categories. See ROI at 405-406, 432-33. In a non-selection case, a Complainant may show that an employer’s reason for the non-selection was pretext for discrimination by demonstrating that her qualifications were “plainly superior” to those of the selectee. Wasser v. Dep’t. of Labor, EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981); see also Celestine v. Petroleos de Venezuela SA, 266 F.3d 343, 347 (5th Cir. 2001) (“differences in qualifications are generally not probative evidence of discrimination unless those disparities are of such weight and significance that no reasonable person in the exercise of impartial judgment could have chosen the candidate selected over the plaintiff for the job in question”). Here, Complainant argued that the Agency’s reasons were pretext for discrimination because he was better qualified for the positions than the selectees. He further asserted that he believed the non-selections were because of the LCA. Moreover, Complainant contended that S2 was pre-selected for the position because she was about to quit working as a Customs and Border Protection Officer. We find that Complainant has not met his burden in proving that the Agency’s legitimate, nondiscriminatory reasons were pretextual. Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). While Complainant has a bachelor’s degree and S1 does not, the evidence in the record does not indicate that a degree is required for the position. Moreover, Complainant has not shown that his qualifications, in other respects, are so superior to those of S1 that no reasonable person could have chosen S1 over Complainant. Additionally, the Commission will not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive. See Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied, EEOC Request No. 0520120603 (Jan. 31. 2013). To the extent Complainant argues that the non-selections were due to the LCA, we note that the scoring panelists in both non-selections stated that they were not aware of the LCA. See ROI at 193, 212, 225, 243. Furthermore, the LCA is not related to any protected basis and is not evidence of any discriminatory animus. 2021003215 7 Lastly, with respect to Complainant’s assertion that S2 was pre-selected for the position, even assuming arguendo such a preselection occurred, such preselection does not violate the statutes enforced by the EEOC unless he can show that such action was driven by discriminatory animus. See Gautreaux v. Dep’t of the Navy, EEOC Appeal No. 01A33107 (July 29, 2003); Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986). Complainant has not submitted any evidence to support his assertions of unlawful discrimination. Mere disagreement with an Agency’s actions is not sufficient to establish pretext. See Ambrose M. v. Dep’t of the Air Force, EEOC Appeal No. 0120180225 (June 11, 2019). Therefore, we find that Complainant has not established that the non-selections at issue were due to discrimination. 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 order finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2021003215 8 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. 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. 2021003215 9 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 24, 2022 Date