Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Feb 25, 2015

0120133100 (E.E.O.C. Feb. 25, 2015)

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. 0120133100 Hearing No. 570-2012-00074X Agency No. HS-CIS-00988-2011 DECISION On August 8, 2013, Complainant filed an appeal from the Agency’s July 20, 2013 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND The Agency employed Complainant as a Refugee Officer (RO) within its Refugee, Asylum, & International Operations Directorate (RAIO), at its headquarters in Washington, DC. On May 26, 2011, Complainant filed an EEO complaint in which he alleged that officials in his chain of command discriminated against him on the bases of disability and age (49) by not promoting him to Supervisory Refugee Officer (SRO) on March 10, 2011. The officials he identified included the Chief of the Overseas Operations Branch within the Refugee Affairs Division, his second-line supervisor (S2), the Deputy Chief of the Refugee Affairs Division, his third-line supervisor (S3), and the Chief of the Refugee Affairs Division, the selecting official for the three SRO positions at issue in this complaint and Complainant’s fourth-line supervisor (S4). The three selectees are identified as Selectee 1, Selectee 2, and Selectee 3. The vacancy announcement advertised three SRO vacancies. Numerous individuals applied, and the Human Resource Operations Center issued certificates of eligibles. The names of 0120133100 2 Complainant, Selectee 1 and Selectee 2 appeared on the GS-13 Competitive Merit Promotion List. Selectee 3’s name appeared on the Non-Competitive List because he had previously served as an SRO. S2 coordinated the initial phases of the selection process. When S2 received the application packages from the Human Resources Center, he convened a panel consisting of himself and three SROs to review the candidates’ resumes and identify those applicants deemed best qualified. The four panelists rated the applications on four criteria: supervising and managing; interviewing; adjudications; and overseas experience. The composite ratings of the applications of Complainant and the three selectees were as follows: Candidate Managing Interviewing Adjudications Overseas TOTAL Selectee 3 20/20 20/20 20/20 20/20 20/20 Complainant 17/20 17/20 19/20 18/20 17.75/20 Selectee 1 19/20 19/20 17/20 19/20 18.50/20 Selectee 2 20/20 20/20 19/20 20/20 19.75/20 Complainant, the three selectees, and three other applicants were deemed best qualified and referred to the next round for further consideration. IR 67, 71, 198-203. In the second phase, S2 convened a larger panel consisting of 8 SROs, and asked them to rate each of the finalists on technical merit and suitability, and to recommend whether to promote that candidate.1 S2 further instructed the SROs to base their ratings on their first-hand experiences in working with or supervising the candidates. The composite ratings of the applications of Complainant and Selectees 1 and 2 by the SROs were as follows: Candidate Technical Merit Suitability Recommend #Y #N Complainant 4.00/5.00 2.50/5.00 3Y 5N Selectee 1 5.00/5.00 4.69/5.00 8Y 0N Selectee 2 4.75/5.00 4.88/5.00 8Y 0N IR 209-211. S2 then presented these results to S3 and S4. On the basis of the ratings provided by the SROs, S2 and S3 recommended Selectee 3 from the noncompetitive certification and Selectees 1 and 2 from the competitive certification. S4 concurred and offered the positions to the three selectees. IR 55-56, 68-70, 75-76. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 20, 2012, motion for summary judgment and issued a decision on June 20, 2013. The Agency subsequently issued a 1 Because of his prior SRO experience, Selectee 3 did not have to be rated on technical merit and suitability. 0120133100 3 final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s decisions involving promotions unless there is evidence of a discriminatory or retaliatory motivation on the part of the officials responsible for the selection. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on his claim of disparate treatment in connection with not being promoted to SRO, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether S2, S3, or S4 were motivated by unlawful considerations of his age or disability. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Such evidence can take the form of a showing that Complainant’s qualifications for the position at issue were plainly superior to those of the selectee. Guida v. United States Postal Service, EEOC Appeal No. 01923174 (April 15, 1993). It can also take the form of discriminatory statements or past personal treatment, comparative or statistical data, unequal application of Agency policy, or deviations from standard procedures without explanation or justification. See Hovey v. Department of Housing & Urban Development , EEOC Appeal No. 01973965, (Aug. 31, 2000). When asked by the EEO investigator why he believed that he had been discriminated against when he was not promoted to SRO, Complainant replied that he had applied seven times for the position since 2006, but had been passed over despite having received outstanding performance appraisals and being told that he was doing excellent work. He also averred that when he asked S2 to explain to him why he had not been selected, S2 said to him, “there is a perception about you.” IR 48-49. S2 denied that he used these words. He did state, however, that there were serious concerns among several SROs about Complainant’s suitability. As an example, S2 cited an instance in which he complimented Complainant on the job he was doing as an acting SRO in Thailand between October and December of 2008. S2 later averred that at the end of that tour, information had come to light that Complainant’s communications with associates and subordinates was not always courteous, tactful and professional, and that his responses to conflict and complaints were not constructive. IR 72-74. This assessment has been corroborated by the fact that Complainant received five negative recommendations from the SROs on the rating panel, while Selectees 1 and 2 received no negative recommendations. SR averred that at times Complainant had been insubordinate and confrontational with employees under him while working overseas, and that he did not accept that in his position, he was considered to be representing the U.S. government while overseas, even during non- duty hours. IR 57-63. While some of the SROs did give Complainant positive recommendations in the area of suitability, others did not. IR 91-137. Thus, while Complainant has expressed his belief that he had been discriminated against when he was not promoted to SRO, he has not presented any sworn statements from other witnesses or documents which contradict the explanation provided by S2, S3, and S4 that the selectees 0120133100 4 were better qualified. We therefore find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to whether S2, S3, and S4 were motivated by unlawful considerations of his age or disability when they made the decision not to promote him to SRO. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. 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). 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 0120133100 5 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 February 25, 2015