Avery R.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

0120181399 (E.E.O.C. Mar. 19, 2019)

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

Avery R.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120181399

Hearing No. 540201600242x

Agency No. HSICE248882015

DECISION

On March 12, 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
February 19, 2018, final decision 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer,
GS-1801, Grade 12/6, at the Agency’s “DHS / ICE / Enforcement and Removal (ERO)” facility
in Mesa, Arizona.

On November 4, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (Black), national origin (Guyanese), color (Black),
age (54), and reprisal for prior protected EEO activity under Title VII when, on September 8,
2015, Complainant learned that two younger Caucasian American employees had been selected

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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for the Supervisory Detention and Deportation Officer (SDDO) position, for which Complainant
had applied.

The pertinent record reveals the following facts. Complainant identified his age as 54, his race as
Black, and his national origin as Guyanese. He had prior known EEO activity against the named
selecting officials (S1 and S2) in this matter.

He named four alleged responsible management officials: the Unit Chief (S1), the Deputy
Assistant Director (S2), a second Unit Chief (S3) and the Assistant Officer in Charge (S4).

Complainant had four years of experience as a Supervisory Immigration Enforcement Agent
(SIEA). In 2015, ICE underwent a reorganization and Complainant’s former position was
eliminated. All SIEAs were transferred to Deportation Officer (DO) positions. Additionally,
Complainant had been a supervisor with the Department of Justice from 2002 to 2011.
Complainant had a total of 13 years of supervisory experience.

On an unspecified date, Complainant received an email announcing a vacancy for the position of
Supervisory Detention and Deportation Officer (SDDO), GS-1801-13. The vacancy was also
posted under Vacancy Announcement 1376092, on USAJOBS.gov. Complainant applied for the
position, although he said that S1 tried to dissuade him from applying. Complainant claims that
S1 told him that he should not apply because he “lacked prosecutorial discretion” and would not
qualify for the position. S1 denied making the statement.

On June 12, 2015, the Human Resources (HR) Processing Center sent Complainant an email, to
inform him that he met the position qualifications.

The Agency established a panel to consider the applications. S1 stated that he and two others
comprised the interview panel. S1 averred that the three-person interview panel evaluated and
scored the resumes to create a matrix based on the vacancy’s required qualifications.

The panel interviewed the candidates who scored at least a 24 on the matrix. One of the panel
members stated that the successful candidate needed to possess Air Operations experience and
that Complainant had been scored low because he did not meet that qualification. Another
panelist said that the scoring was solely based on the candidate’s resume. The panel stated that
Complainant did not submit a complete resume. His resume was badly written and he failed to
identify his name, past job titles, or years of experience.

The panel notated on the matrix whom they wanted to interview. The Special Assistant (57
years, Caucasian, white, American, witness EEO activity) stated that only the highest scoring
resumes received an interview. Complainant’s score was 11.9 out of 30 from the panel. The
selectee 1’s score was 24 out of 30 and the second selectee received a score of 25 out of 30.

The panel noted that selectee 1 submitted a very detailed resume that clearly identified her
contact information and her six years of experience with ICE.
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Management witnesses testified that a successful candidate needed to possess at least one-year of
GS-12 experience, Air Operations experience, and have strong oral and written communication
skills. Because the vacancy was an entry-level supervisor position, prior supervisory experience
was not required.

After the interviews were completed, the interview panel recommended the two highest scoring
candidates for selection. The panel provided a selection memorandum to S2 on July 16, 2015. S2
then delivered it to S3, the Assistant Director, who was the selecting official. S3 made the
selection based on the memorandum.

The panel members denied having any knowledge of the selectee’s ages, national origins or prior
EEO activities, but they acknowledged that they were aware of their races and colors. Both of the
selectees were Caucasian, American and aged 41 years old and 49 years. Complainant was 54
years old. Coworker-1 was Caucasian, 41 years old, unknown color or national origin and
unknown prior EEO activity. The second co-worker was Caucasian, 49 years old, unknown
prior EEO activity, and unknown national origin.

On September 8, 2015, Complainant received an office-wide email announcing that the two
coworkers had been selected. Complainant was not provided a reason for his non-selection.

Complainant asserts that his non-selection was based on his national origin, because
management officials found his accent problematic.2 He averred that he had been removed from
one assignment, because a colleague complained that they could not understand Complainant
due to his accent.

S2 stated that she did not find Complainant’s accent to be problematic. She also denied being
involved in removing Complainant from being in charge of the weekly conference call, after
others stated that they found Complainant difficult to understand.

S2 confirmed, however, that strong communications skills were required for this vacancy, but
she refused to provide examples of Complainant’s poor communication skills.

Further, Complainant asserts that management preferred to hire younger applicants. He averred
that in the last five years, management has only promoted one unnamed person older than age
50.3 Complainant also averred that he believed that he was not selected because he filed a

2 S2 averred that she did not find Complainant’s accent to be problematic. She also denied being
involved in removing Complainant from being in charge of the weekly conference call.

3 The record shows that, during the period at issue, the unit had seven Deportation Officers in
Mesa, Arizona. Six of the seven were over 40 years of age. Three were White. Three self-
identified as Hispanic or Latino and one was African-American.
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complaint against S1 and S2, whom he believed was the selecting official. The actual selecting
officer was the Assistant Director, who was not named as a RMO.

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
but subsequently withdrew his request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

Agency Decision

The Agency acknowledged that Complainant had four years of experience as a Supervisory
Immigration Enforcement Agency, which involved the same job duties as the SDDO position
and that he had thirteen years of supervisory experience. The Agency stated that Complainant
was not interviewed because his resume was poorly written. His resume did not identify his past
job titles or years of experience and failed to explain his experience. In contrast, the two
selectees submitted very detailed resumes that clearly identified the necessary contact
information and years of experience with ICE air operations. The Agency found that
Complainant provided no probative evidence to rebut management’s reasons. The decision
concluded that Complainant failed to prove by a preponderance of the evidence that
management’s legitimate, nondiscriminatory reason was a pretext for discrimination.

CONTENTIONS ON APPEAL

Neither party submitted a brief on appeal.

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”).

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
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
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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.

Complainant stated that he believed that he was wrongfully denied promotion because he had
filed prior EEO complaints against S2 and mentioned S2 as the primary reason for the denial. He
also claimed that management found his accent problematic and preferred younger employees
with no prior EEO activity.

Even assuming that Complainant established the elements of his prima facie claims, the Agency
articulated a legitimate, non-discriminatory reason for its actions. The record shows Complainant
was not interviewed because the Panel found his resume to be incomplete and poorly written.
The panel did not refer Complainant’s name to the selecting official and the selections were
based on the recommendations submitted to the selecting official.

Complainant did not offer any evidence that these reasons were a pretext for unlawful
discrimination and/or retaliation. We find, therefore, that Complainant failed to show by a
preponderance of the evidence that the Agency discriminated against him, as alleged.

CONCLUSION

Accordingly, we AFFIRM the Agency’s Final Decision.

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),
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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.

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.
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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

March 19, 2019
Date