Roy F.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120141821 (E.E.O.C. Apr. 8, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Roy F.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120141821

Hearing No. 520-2013-00364X

Agency No. HS-ICE-23012-2012

DECISION

On April 14, 2014, Complainant filed an appeal from the Agency’s April 8, 2014, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq. Our review is de novo. 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 an Immigration
Enforcement Agent, GS-1801-09, at the Agency’s work facility in Castle Point, New York.

On November 14, 2012, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the basis of reprisal for his prior protected EEO activity
under Title VII when on August 8, 2012, Complainant learned that he was not selected for the
position of Deportation Officer, GS-1801-11/12.

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 Equal Employment
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.

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Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
On August 13, 2013, the AJ assigned to the case issued a Notice of Intent to Issue a Summary
Judgment Decision. Over Complainant's objections, the AJ issued a decision without a
hearing on September 13, 2013.

The AJ found that no reprisal discrimination occurred. The AJ stated that Complainant had
engaged in prior EEO activity. The Deputy Field Office Director was the selecting official.
The AJ noted that the selecting official was aware of Complainant’s prior EEO activity as
referenced in Complainant’s resume where Complainant stated he had served as a
representative in an EEO matter. The record reflects that twenty eligible Deportation Officer
candidates were referred to the selecting official. Three of the twenty referred candidates
worked at the Castle Point facility, including Complainant. The selecting official chose the
other two candidates from the Castle Point facility. According to the selecting official, he
chose them because they had worked in immigration related positions the longest. Selectee one
had 10 years of immigration service and Selectee two had 15.8 years of immigration
experience. Complainant had seven years of immigration service.

The AJ noted that the selectees had both received a rating of “Outstanding” for their
performance evaluations and Complainant’s rating was one level lower at “Excellent” for
Fiscal Year 2011. In terms of education, Complainant has a bachelor’s degree and the
selectees do not. Complainant received a supervisory rating of 41 and Selectee one had a 36
and Selectee two had a 37. Complainant and Selectee two received “Highly Recommend”
ratings for the position and Selectee one received a rating of “Recommend.” The AJ stated
that the overall rankings of these three candidates were Complainant, 45 points, Selectee one,
38 points and Selectee two, 37 points.

The AJ found that Complainant failed to establish a prima facie case of reprisal. According to
the AJ, the period of time between Complainant’s most recent prior EEO activity and his
nonselection was almost three years, and thus the linkage was attenuated. The AJ stated that
although the selecting official may have known about Complainant’s prior EEO activity, the
selecting official did not work in the same office as Complainant, he had very little interaction
with Complainant and was not named in his prior complaints.

The AJ reasoned that even if Complainant could set forth a prima facie case of reprisal, he
could not show that the Agency’s legitimate reason for his nonselection was pretext for
reprisal. The AJ stated that Complainant had not demonstrated that he was clearly superior to
the two candidates who were selected. The AJ concluded that Complainant was as equally
qualified as the two selectees, but lacked the years of immigration experience that the two
selectees had, which was the tiebreaking factor utilized by the selecting official.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was more qualified for a Deportation Officer position
than the two selectees. Complainant criticizes the quality of the investigation in the instant
complaint. Complainant points out that the investigative report does not contain affidavits or
statements from any of the management officials that were on the rating panel or any official
other than the selecting official.

In response, the Agency asserts that the selecting official was unaware of any prior EEO
complaints filed by Complainant when he made his selections. The Agency notes that
Complainant’s resume did not indicate when Complainant served as a representative. The
Agency states that there was no causal connection between the selecting official’s awareness
that Complainant served as a representative and his decision not to select him for the
Deportation Officer position. The Agency asserts that the selecting official did not work in the
same office as Complainant, had very little interaction with Complainant and was not named in
his prior EEO complaints.

The Agency states that the primary function of a Deportation Officer at the Castle Point facility
is to handle Criminal Alien Program (CAP) cases. The Agency points out that the selecting
official stated that the tiebreaker between the three candidates was that the selectees had
worked in immigration related positions longer than Complainant.

Finally, the Agency asserts that the AJ’s issuance of summary judgment was procedurally
appropriate. The Agency states that the AJ correctly determined that an appropriate factual
record, which contained all the information necessary to enable an accurate adjudication of the
complaint on its merits, had been developed. According to the Agency, Complainant was
afforded ample notice of the proposal to issue a decision without a hearing; a comprehensive
statement of the allegedly undisputed material facts; the opportunity to respond to such a
statement; and the chance to engage in discovery before responding, if necessary.

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.

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating

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that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that he established a prima facie case of discrimination, Complainant failed to present evidence
to rebut the Agency's legitimate, nondiscriminatory reason for its actions. Specifically, the
Agency stated that Complainant was not selected for the Deportation Officer position because
the two selectees had worked in immigration related positions longer than Complainant. The
Agency stated that while Complainant had seven years of such experience, the selectees had 10
and 15.8 years of such experience, respectively. We find that the Agency articulated a
legitimate, nondiscriminatory reason for Complainant’s nonselection.

Complainant attempts to establish pretext by focusing on what he considers to be his superior
qualifications for the position. Complainant may be able to establish pretext with a showing
that his qualifications were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647. F.2d 1037,
1048 (10th Cir. 1981). In support of his argument, Complainant cites the fact that he was rated
higher than both selectees by the rating panel and that he was highly recommended for the
position in contrast to one of the selectees who was merely recommended. Complainant points
to the fact that he has a bachelors degree and the selectees do not. It is evident that
Complainant possessed several notable credentials in support of his application for the position.
However, the selectees also possessed several strong qualities in support of their applications.
The selectees had more experience in working in immigration related positions. Both selectees
as well as Complainant had worked in criminal alien program (CAP) cases as well as criminal
prosecutions. The selectees also had higher ratings than Complainant on their most recent
performance evaluations. We find that persuasive evidence does not exist to establish that
Complainant was so better qualified for the position than the selectees that discrimination could
be inferred from his nonselection.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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

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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

April 8, 2016
Date