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

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020000051 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verla G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020000051 Agency No. HS-CBP-01117-2018 DECISION On September 16, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 12, 2019 final decision 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. BACKGROUND During the period at issue, Complainant worked as an Import Specialist, GS-11, at the Agency’s Center of Excellence and Expertise (CEE), Industrial and Manufacturing Materials, Office of Field Operations in Charlotte, North Carolina. On May 25, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and sex (female) when, on January 5, 2018, she learned she was not selected for the position of GS-1889-12 Senior Import Specialist, CEE, Machinery, GS-1889-12, advertised under Job Opportunity Announcement Number OFO-IMP-10053288-TJE. Following an investigation, Complainant initially requested a hearing before an Administrative Judge. 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. 2020000051 2 Complainant, however, withdrew the hearing request. On August 12, 2019, the Agency issued a final decision based on the evidence developed during its investigation of the allegation, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination. The instant appeal followed. Complainant, on appeal, argues that Agency management improperly failed to conduct any interviews for the subject position and failed to provide the candidates’ knowledge, skills and abilities scores as required by its own Merit Promotion Plan. Furthermore, Complainant argues that she was more qualified for the subject position than the selectee (Caucasian) due to her work experience, knowledge, and relevant training. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. 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, non-discriminatory 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). 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. From September 25, 2017 through October 6, 2017, the Control Border Protection (CBP)’s Office of Field Operations, Machinery Center, posted a vacancy announcement for a Senior Import Specialist, GS-1889-12, advertised under Job Announcement Number OFO-IP- 10053288-TJE. 2020000051 3 The oversight of the subject position would remain with the Laredo Field Office while the physical location of the position would be with the Port of Charlotte, in Charlotte, North Carolina. The vacancy was open to all current federal employees with competitive status who worked for CBP. Complainant applied for the subject position and was qualified for the Certificate of Eligibles Competitive Merit Promotion with twelve other candidates. Complainant’s application indicated that she had worked for the Agency since October 2010 as an Import Specialist. She also worked for the Agency from 2002 to 2005 as a CBP Officer, and she had nearly fourteen years of service with the federal government. At the time of her application, Complainant had worked for the Industrial and Manufacturing CEE as an Import Specialist at the GS-11 level. The recommending officials for the Senior Import Specialist position were the Assistant Director of the Machinery Center and the Center Director, Office of Field Operations. The selecting official was the Director, Field Operations. The Assistant Machinery Center Director requested that all thirteen applications be reviewed by the Supervisor Import Specialist (SIS). SIS was also assigned to the Machinery Center and worked out of the Port of Charlotte where the vacant subject position would be located. He stated that once SIS completed the ranking order recommendations, he discussed his recommendations with him by telephone. SIS provided the Assistant Machinery Center director a list of bullet points identifying each candidate’s knowledge, skills, and abilities based on his review of the resumes. The Assistant Machinery Center Director identified the top three candidates to the Center Director, including the selectee, a named female candidate, and Complainant . He considered that the selectee was the best candidate for the subject position due to his knowledge as an Import Specialist, his demonstrated initiative and his reliability. Moreover, the Assistant Machinery Center Director noted that there were no interviews. The Center Director, Office of Field Operations in Laredo, Texas, was the recommending official for the position of Senior Import Specialist, CEE, Machinery, GS-1889-12. He recommended that the selectee be chosen for the subject position based on his overall CBP experience, extensive military experience, familiarity with the Machinery Center, and input from SIS. The Supervisory Import Specialist (SIS) explained that he received the candidates’ applications and shared his thoughts with the Assistant Machinery Center Director, also his first level supervisor. He further stated he did not make a recommendation or selection for the subject position. SS1 stated that the selectee’s qualifications include a proactive individual who is conscious and aware of all of the responsibilities of a Senior Import Specialist, subject matter expert in local international trade community, familiar with customs trade law and international trade regulations, had been nationally recognized for successful enforcement operations where he had personally recovered revenue in excess of fifty million dollars in one year, demonstrated strong leadership, and volunteers on many of collateral duty assignments, including telephone and systems security, diversity inclusion committee. 2020000051 4 Moreover, SIS considered the selectee to be a “jack of all trades.” Furthermore, SIS stated that he reviewed Complainant’s application but did not make a recommendation or selection for the subject position. The Director of Field Operations stated that he followed the recommendations by the CEE Director after reviewing the supporting documents. He further stated that he based his selection on the CEE Director’s recommendation as highlighted in his recommendation memorandum. At the time selectee applied for the subject position, he had worked for the Machinery CEE as an Import Specialist at the GS-11 level. A review of the selectee’s application identified that he had worked for the Agency since July 2011 as an Acting Entry Supervisor and as an Import Specialist in October 2011. He had worked more than twenty-five years of service with the federal government. The Director asserted that Complainant was considered for the subject position but not selected as he determined she was not the most qualified candidate. Moreover, the Director stated that Complainant’s race and sex were not factors in his decision to select the selectee. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these legitimate proffered reasons for the selection decisions made were a pretext making unlawful race and sex discrimination. Complainant has not shown that the alleged disparities in qualifications between her and the selectee was “of such weight and significance that no reasonable person, in the exercise if impartial judgment, could have chosen the [selectee] over [her] 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 the record supports a determination that Complainant appears to have a distinguished career and many achievements, she nevertheless did not establish that her qualifications were superior to of the selectee for the subject position. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020000051 5 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. 2020000051 6 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 20, 2021 Date