Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.Download PDFEqual Employment Opportunity CommissionMay 7, 20140120131419 (E.E.O.C. May. 7, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 0120131419 Agency No. HS-CIS-22539-2012 DECISION Complainant appeals to the Commission from the Agency’s final decision dated January 29, 2013, finding no discrimination. For the following reasons, we AFFIRM the Agency’s final decision finding of no discrimination. BACKGROUND In his complaint, dated July 11, 2012, Complainant alleged discrimination based on race (Black) and national origin (African American) when on June 1, 2012, he learned that he had not been selected for the position of Immigration Services Officers (ISO), Level 2, GS-1801- 11/12, at the California Service Center, advertised under Job Announcement Number CIS- 605193-WCS. Complainant also alleged discrimination in reprisal for filing the foregoing claim when on August 29, 2012, his supervisor issued him a Memorandum of Counseling. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency thus issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant files no appeal brief. 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. (November 9, 1999) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the 0120131419 2 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”). After a review of the record, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for the alleged incidents. During the relevant time period at issue, Complainant was an Immigration Service Officer, Level 1, GS-9, at the Agency’s California Service Center, Laguna Niguel, California. With regard to the nonselection, the Agency indicated that 166 candidates applied and 84 of them were selected for the positions. Specifically, the Agency stated that candidates were not interviewed and the selection was based on rating by recommending officers on their resumes and their supervisor’s evaluation. The Agency indicated that Complainant received 5 points (out of 10) for his resume and 10 points (out of 20) for his supervisor’s evaluation, for a total of 15 points. The Agency stated that Complainant was not selected for the positions due to his low rating of 15 points, i.e., the lowest score of applicants selected was 19 points. Specifically, the recommending officers indicated that Complainant received only 5 points for his resume because there were frequent spelling, grammar, and syntax errors and it utilized generic job descriptions which made it difficult to determine his actual job duties and assignments. The recommending officer also stated that Complainant’s resume only minimally demonstrated his ability to research, analyze, write, and assist other agencies, and to show the professionalism necessary for the positions at issue. Complainant’s second level supervisor indicated that during the relevant time period, he rated Complainant since his first level supervisor was out of the office and based on his work assignments and the cases he turned in, he gave him a total of 10 points. The 10 points were comprised of: 3 points for writing; 2 points for research and analytical skills; 3 points for decision making; and 2 points for flexibility and communication (5 maximum points for each area). The supervisor noted that he gave a higher rating for another applicant, also Black, who shared the same first level supervisor with Complainant. Despite Complainant’s claim that he had more education and more experience than the selectees, the recommending officers indicated that candidates were evaluated based on demonstrated performance and potential. With regard to the Memorandum of Counseling of August 29, 2012, Complainant’s first level supervisor indicated that although Complainant was informed of his being absent in his workstation on two occasions at the beginning of 2012, he continued to be absent thereafter. Specifically, the supervisor stated that Complainant was consistently away from his workstation, Division XII, beyond normal expectations and she was recently advised that his presence in the Division I area caused some disruption to other workers. Complainant claimed that the supervisor exaggerated his being away from his workstation since his work performance was not suffering. However, we note that Complainant does not dispute the supervisor’s statements that he was previously informed of his frequent absences beyond her 0120131419 3 expectations and the Memorandum was issued based on the report from Division I, described above. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. We find that Complainant failed to show that his qualifications for the positions were plainly superior to the selectees’ qualifications or that the Agency’s actions were motivated by discrimination. See Wasser v. Department of Labor , EEOC Request No. 05940058 (November 2, 1995). Furthermore, we find that Complainant failed to show that he was treated less favorably than a similarly situated employee under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 9-18 (November 9, 1999). 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). 0120131419 4 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date May 7, 2014 Copy with citationCopy as parenthetical citation