Tyson A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 28, 2018

0120182143 (E.E.O.C. Nov. 28, 2018)

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

Tyson A.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120182143

Hearing No. 480-2017-00127X

Agency No. HS-CBP-26140-2016

DECISION

On June 15, 2018, 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
April 17, 2018, final order concerning his equal employment opportunity (EEO) complaint. He
alleged 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

At the time of events giving rise to this complaint, Complainant worked as a Seized Property
Supervisor, GS-1801-12, at the Agency’s San Diego Otay Mesa Port of Entry facility in San
Diego, California.

On June 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian) and sex (male)2 when, on April 7, 2016, he learned
that he was not selected for the position of Supervisory Paralegal Specialist, GS-0950-13.

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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The pertinent record shows that Complainant was employed with US Customs and Border
Protection with a duty station in San Diego, California. He had ten years of first line supervisor
experience and had been previously promoted to be in charge of the K-9 section at San Ysidro.

The Agency advertised a vacancy for a Supervisory Paralegal Specialist position under Job
Opportunity Announcement (JOA) Number MHCMP-1559896-KDL. Complainant applied for
the position on December 4, 2015. He was one of two candidates applying for the position.

Complainant received a rating of 98% from USAJobs for the position. He was interviewed on
February 2, 2016. The interview was a face-to-face interview by the FP&F Officer (female), the
Assistant Port Director of Cargo (male) and another individual identified as the Watch
Commander (male). The panelists were aware of Complainant’s race and sex.

Complainant states that the Panel failed to ask him any questions that applied to the actual
position or any questions geared to gauge his knowledge of what he knew about the “FP&P”
position. Complainant states that his performance was outstanding during the interview. He
received the higher score of the two candidates. However, neither candidate was recommended
for selection or deemed to be strong candidates, and no selection was made. The record indicates
that in reaching this decision “factors such as education and FPF case processing experience
were taken into consideration.” A request was made to re-announce for a wider pool of
candidates.

Complainant stated that, during mediation, he was told that he was not selected because he had
“ZERO experience in the position that he applied for.” He said he was also told that he had
disciplinary issues. Complainant stated that he had no documented disciplinary issues in his files.
Complainant also stated that he understood that a female would be filling the position on a
temporary assignment that was not offered to anyone else.

Complainant averred that for the past five years that he has been at Seized Property, the GS-13
position at FP&F has been filled by promotion with females. He asserts that he was denied the
position because he is a white male. The record shows that an African-American male was also
denied the position.

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
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 13, 2018
motion for a decision without a hearing and issued a decision by summary judgment in favor of
the Agency on April 17, 2018.

2 We note that the complaint did not check the box to allege sex discrimination, but he did state
that “I feel that I was discriminated [against] because I am white male.”
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The AJ determined that the investigative record was sufficiently complete and the evidence
revealed no genuine dispute regarding any material fact. The AJ acknowledged that he did not
take into consideration Complainant’s deposition, which was not delivered to the AJ prior to the
issuance of the AJ’s decision. The AJ reasoned that Complainant failed to present evidence
sufficient to refute that management’s decision not to hire him because they felt he lacked the
experience and education that would have qualified him for the position, including prior
paralegal experience. The AJ further reasoned that Complainant failed to present evidence
sufficient to link the Agency’s decision to his race or sex to the initial decision not to select him.
Regarding any selection that resulted from the later re-announcement of the position, the AJ
found that it was undisputed that Complainant did not reapply for the position and cannot claim
that the Agency rejected him. For these reasons, the AJ granted summary judgment to the
Agency.

The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).
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
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).

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 Complainant to prevail, he
or she must first establish a prima facie case of discrimination by presenting facts that, if
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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 Dep’t of
Community 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 a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.

Even assuming that Complainant established the elements of his prima facie claim, we find that
the Agency met its burden of production, by articulating a legitimate, non-discriminatory reason
for its action. The record shows he was not selected based on the panel recommendation, which
did not view either of the candidates as “strong” candidates or recommend them for selection.

In order 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 has 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. The record
shows that no one was selected for the vacancy at issue and that Complainant did not apply for
the subsequent announcement. Further, the undisputed record shows that the selecting official
did not select anyone, because the panel did not recommend either candidate. While in his
deposition Complainant stated that “females predominantly fill the position that I applied for,” he
conceded that he was unaware of the numbers to substantiate his claim.” Complainant’s
Deposition at 108.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ’s decision was correct and appropriate.

CONCLUSION

Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 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.
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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 28, 2018
Date