[Redacted], Scott K.,1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.Download PDFEqual Employment Opportunity CommissionJul 27, 2021Appeal No. 2021002888 (E.E.O.C. Jul. 27, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott K.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021002888 Hearing No. 570-2019-01368X Agency No. HS-CBP-02166-2018 DECISION On April 19, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 26, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant period, Complainant worked as a Supervisory Customs and Border Protection Officer (SCBPO), GS-1895-13, assigned to the Advanced Training Center in Harper’s Ferry, West Virginia. On July 6, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. 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. 2021002888 2 On July 26, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him based on race (Caucasian) and age (age 52) when: 1. on August 2, 2018, Complainant learned that he was not selected for the position of Supervisory Customs and Border Protection Officer (SCBPO), GS-1895-13, at the Toronto Preclearance, advertised under Job Opportunity Announcement Number: CHCOFOMP-2028456-MJB; 2. on February 16, 2018, he learned his selection to the position of a SCBPO, GS-1895- 13, Toronto Preclearance was rescinded; and 3. on June 23, 2018, he was placed in the position of SCPO, GS-1895-13, at the Toronto Preclearance. On October 17, 2018, the Agency issued a partial dismissal. Therein, the Agency dismissed claims 2 and 3 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency also dismissed claim 3 pursuant to 29 C.F.R. 1614.107(a)(1) for failure to state a claim. On appeal, Complainant does not challenge the dismissal of claims 2 and 3. Therefore, we will not address these claims in our decision. After an investigation of claim 1, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed its Motion for Summary Judgment. Complainant did not respond. Thereafter, the AJ issued a decision by summary judgement in favor of the Agency, finding no discrimination. In its April 26, 2021 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS As a threshold matter, we note that Complainant, on appeal, argues that the instant complaint and a separate complaint should be consolidated before the AJ. We decline to do so in this instance. The AJ has issued a decision in the instant case, and it is appropriate for review independent of other pending complaints. 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 2021002888 3 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 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). 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 failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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 undisputed facts fully support the AJ’s finding that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. On February 18, 2018, Complainant applied for the position of a SCBPO, GS-1895-13, at the Toronto Preclearance station, advertised under Job Opportunity Announcement Number CHCOFOMP-2028456-MJB. A Merit Promotion Certificate of Eligibles was issued referring thirty-nine candidates, including Complainant. A Non-Competitive Candidate Referral was also issued, referred 50 candidates. The AJ noted that a panel consisting of the Port Director (PD), Assistant PD, and the Chief, individually scored each of these eighty-nine candidates for the SCBPO, GS-1895-13 position on the following weighted criteria: overall resume score (weight of 4); knowledge of preclearance operations (weight of 3), prior SCBPO/Acting SCBPO (weight of 2), and other attributes/accomplishments/awards (weight of 1). The scoring criteria for the resume reviews were based on a scale of 0 to 5, with the highest score of 5 and the lowest score of 0 (i.e., the overall best score was a higher total number). 2021002888 4 Complainant’s total score from all panel members was 89. Nine applicants’ scores were higher - 116, 111, 109, 99, 93, 93, 92, 91, and 90. The panel then conducted telephone interviews with the higher ranked candidates, but Complainant was not interviewed. Six applicants (4 Caucasian, 1 Black, 1 Hispanic; ages 33; 40; 44; 48; 56; and 56) were selected for the SCBPO positions. The Assistant Port Director (Assistant PD) was part of the resume review along with the Port Director (PD) and the Chief, CBPO. He stated that each panelist reviewed the applicants’ knowledge of Preclearance Operations, prior/current acting SCBPO experience and other attributes, accomplishments and or awards. The Assistant PD stated that he reviewed the resumes to find the best qualified candidates for the position. The applicants were applying for a first line SCBPO position at Toronto Preclearance which is the CBP’s fourth busiest airport. He stated that after each panel member completed a resume review, the scores were placed on a matrix. The Assistant PD further explained as per the score of “90 or above cutoff,” Complainant was not interviewed along with other applicants who received scores below 90. The Port Director (PD) was one of the three managers who rated the applicants’ resumes. At that time, he determined that the top nine applicants with the highest total overall score would be interviewed. He explained that he scored the resume based on what the applicant declared as his or her working experience. For instance, PD stated the applicants were applying for a supervisor CBPO and PD was looking for keywords and, “I look for examples of leading people and leading change based on the applicants overall work history.” Furthermore, PD stated that six applicants were selected for the subject positions based on their overall scores and work experience. The Acting Director Field Operations, also Complainant’s fifth-line supervisor, stated that he was the selecting official for the SCBPO position. The selecting official stated that he was unaware that Complainant applied for the subject position. Specifically, the selecting official stated that he was not part of the review or recommendation panel. He stated that the Port Director is at the front of the selection process for review and recommendation for selection. Following the interviews, the Port Director submitted the panel’s recommendation of the six applicants for the subject positions based on their high scores and work experience. Moreover, the selecting official stated that Complainant’s race and age were not factors in his decision to select the recommended applicants for the subject positions. In her decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory for the alleged discriminatory action. She noted that Complainant was evaluated and scored based on his application package just as each of the other eighty-eight applicants. The AJ further noted that Complainant was not selected for the subject position “because he was not one of the best suited applicants among a competitive field of eighty-nine applicants for this position. The scoring reflects that Complainant’s score ranked him closely with other applicants, but ultimately not in the top six, so he was not selected for the position.” 2021002888 5 In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claims that his treatment was the result of his race and age. Here, the preponderance of the evidence does not establish that the Agency management involved were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision on claim 1, finding no discrimination was established. 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. 2021002888 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 July 27, 2021 Date Copy with citationCopy as parenthetical citation