Sylvia B.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.Download PDFEqual Employment Opportunity CommissionNov 18, 20160120142095 (E.E.O.C. Nov. 18, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sylvia B.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 0120142095 Hearing No. 451-2013-00069X Agency No. HS-ICE-22040-2012 DECISION Complainant filed an appeal from the Agency’s final order dated April 14, 2014, finding no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, filed on April 17, 2012, Complainant alleged discrimination based on race (Hispanic), color (olive skinned), national origin (Mexican), and age (over 40) when on February 28, 2012, she learned that she was not selected for the position of Senior Attorney, GS-0905-15, advertised by internal email in September 2011.2 Upon completion of the investigation of the complaint, Complainant requested 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. 2 Although Complainant also alleged discrimination based on parental status, parental status is not a basis that is protected under EEOC Laws or regulations and is properly dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). 0120142095 2 Opportunity Commission Administrative Judge (AJ). On March 5, 2014, the AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged nonselection. During the relevant time period, Complainant was employed as an Assistant Chief Counsel, GS-14, at the Harlingen Sub-Office of the San Antonio Office of the Chief Counsel, Immigration and Customs Enforcement (ICE), in Harlingen, Texas. The Agency indicated that it advertised a vacancy for the Senior Attorney, GS-15 position at issue via an internal electronic message in September 2011. Therein, the Agency Chief Counsel stated that: all applicants must submit a cover letter, resume, writing sample, and performance appraisals for the past three years; the cover letter must address relevant experience, education, training, self-development, awards, commendations, outside activities, and other pertinent information; and incumbents must have excellence in legal writing and research as evidenced by briefs, memoranda, and/or advisory position papers. The Agency stated that: six applicants, including Complainant, were qualified and applied for the position; three interview panelists interviewed four best qualified candidates, including Complainant; and after considering candidates’ cover letter, resume, writing sample, performance appraisals, and interview, the panelists unanimously recommended a selectee (33 0120142095 3 years old, white, non-Hispanic), who was also an Assistant Chief Counsel, to the selecting official who ultimately selected the selectee based on the panelists’ recommendation. Complainant claimed that she had six years of experience as an immigration attorney with ICE whereas the selectee had only three years. The panelists acknowledged Complainant’s longer years of experience, but stated that the selectee’s other factors outweighed such experience. Specifically, the panelists indicated that the selectee’s cover letter was very thorough; her writing sample was the best of the candidates; she came to the interview with ideas on how to partner with the clients, how to improve the quality of legal representation in immigration court, and how to best serve the office; and she was the most knowledgeable regarding the role of a Senior Attorney. However, indicated the panelists, Complainant’s cover letter was very short and did not fully address the relevant experience, education, training, self-development, awards, commendations, outside activities, and other pertinent information as required under the announcement for the position; she did not do well during her interview; she failed to articulate any particular plan or goals she would like to accomplish as a Senior Attorney; and her writing sample was poor with minimal substantive analysis, lacked essential citation support, and contained incorrect and inconsistent citation formatting. Complainant indicated that during the interview regarding how she handled cross-examination in national security cases, one panelist remarked to her that “well, you’re a mom and you have two small kids and you’re used to questioning them;” and in response, she told the panelist that “Yes, I am a mom and I have two small kids . . . and I question them a lot. They do try to get away with a lot of things, if I’m not careful.” Complainant claimed that the foregoing remarks distracted her during the interview. The panelist at issue, acknowledging her remarks were unnecessary, stated that: most parents, including the panelist’s own parents, were great at eliciting information from an oftentimes reluctant child; cross-examination in court oftentimes involved eliciting information from a reluctant witness; she was simply making an analogy and not a comment on Complainant’s children; and she did not intend or attempt to impede Complainant’s interview performance but rather was attempting to engage her and elicit more enthusiasm and interaction from her. The AJ stated that assuming the foregoing remarks were inappropriate, the panelist intended to refer only to Complainant’s experience “cross- examining” her children and her response to the panelist’s remarks suggested that at least initially, she, too, interpreted them that way. Complainant also claimed that the selectee was given an unfair advantage when she was later allowed to submit her FY2010 performance appraisal of which she failed to submit by application deadline on October 21, 2011. The panelists acknowledged that the selectee submitted her FY2009 and FY2011 performance appraisals but failed to submit her FY2010 appraisal by the application deadline. The panelists indicated that when they discovered that the selectee did not submit FY2010 performance appraisal, they sought its legal counsel’s advice and based on the counsel’s recommendation, on November 30, 2011, the selectee was asked to submit her FY2010 performance appraisal (which she submitted next day). Based on the foregoing, the AJ stated that Complainant failed to offer any evidence to suggest that the foregoing action was based on discrimination as Complainant alleged. The record reflects that 0120142095 4 both Complainant and the selectee received “Meets Expectations” for their annual performance appraisals submitted for the position at issue.3 After a review of the evidence in the record, the AJ determined and we agree that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting her for the position. Furthermore, Complainant failed to show that her qualifications for the position were plainly superior to the selectee’s qualifications. See Wasser v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995). Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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. 3 The record reflects that the Agency’s employees received the overall rating of either “Meets Expectations” or “Unacceptable” for their annual performance appraisal. In this case, Complainant submitted her performance appraisals for FY2008, FY2009, and FY2010, and the selectee FY2009, FY2010, and FY2011. 0120142095 5 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 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 November 18, 2016 Date Copy with citationCopy as parenthetical citation