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

Equal Employment Opportunity Commission

May 13, 2015

01-2013-1491-0500 (E.E.O.C. May. 13, 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. 0120131491

Agency No. HS-CIS-22623-2012

DECISION
Complainant filed an appeal from the Agency’s January 29, 2013 Final Decision concerning
her equal employment opportunity (EEO) 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, the Commission AFFIRMS the Agency’s
Final Decision, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Immigration
Service Officer, Level 1 at the Agency’s California Service Center facility in Laguna Niguel,
California. On August 22, 2012, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the bases of race (Caucasian), national origin (German),
sex (female), color (white), and age (67) when:

On June 12, 2012, Complainant learned that she had not been selected for the
position of Immigration Services Officer (ISO) Level 2, GS-180-11 /12, at the
California Service Center (CSC), advertised under Job Announcement Number
(JAN) CIS-605193-WSC.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
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hearing within the time frame provided in 29 C.F.R. § 1614.108(f),1

the Agency issued a Final
Decision pursuant to 29 C.F.R. § 1614.110(b).
In its Decision, the Agency found that Complainant applied for the identified position along
with 165 other eligible applicants, both internal and external. The selecting official (SO)
relied on the recommendations of a Deputy Director and an evaluation team in making her
selection of 84 candidates to fill the vacant positions. The Agency found that the evaluation
team (composed of two Agency management employees), assigned a composite score to each
application consisting of points awarded for each submitted resume and in the case of internal
applicants, from supervisors, for writing, research and analysis, decision making, flexibility
and communication skills based upon the recommendations received from supervisors in the
case of internal applicants. The Deputy Director stated that candidates who scored 20 points
or more were recommended for selection and ultimately selected. Complainant, the Agency
observed, achieved a composite score of 17 points and was not selected. Ultimately, some
candidates declined the position and some selections were made below 20 points, but all above
Complainant’s 17 points. Approximately 84 persons were selected.

The Agency found that because the Agency officials conducting the selection process
articulated legitimate, nondiscriminatory reasons for the selections made, the Agency did not
analyze Complainant’s complaint for a prima facie case of discrimination on any basis. The
Agency found that the scoring system used by the evaluation team considered the quality of the
applicants’ experience, rather than the quantity. The Agency found that Complainant did not
show that her qualifications were plainly superior to those possessed by the selected candidates.
The Agency’s Final Decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

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
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”).
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green

1 The record indicates that Complainant’s request for a hearing was untimely.
,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
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inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 13, 1997). 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the evidence supports the Agency’s Final Decision. We find no
dispute that Complainant was qualified for the identified position and that approximately half of
the eligible candidates who applied were selected while Complainant was not. We consider the
statement of Complainant’s immediate supervisor who states that he was only Complainant’s
supervisor for a short while (a matter of weeks) before he was asked to provide a
recommendation for Complainant. Complainant’s resume was awarded five points, but
Complainant’s supervisor gave her only minimal scores (3’s) that did not allow Complainant’s
composite score to fall at or above the 20 point cutoff score. We find no evidence that the
selecting official, the Deputy Director conducting the recruitment process, or the members of
the evaluation team were aware of Complainant’s national origin or specific age. We also find
no evidence that Complainant’s sex, race, or color played any role in the Agency’s selection
process. We find the selecting official states that she has never met Complainant.

In an attempt to prove pretext, Complainant may establish that that her qualifications are
“plainly superior” to those of the selectee. See Patterson v. Dep’t of the Treasury

, EEOC
Request No. 05950156 (May 9, 1996). The record reveals that the qualifications of the
selected candidates represent a range of experience and variety of skills. Among the selectees
are candidates with advanced academic degrees as well as those with fluency in multiple
foreign languages providing the Agency with evidence, for example, of skills in writing and
communications. We do not find that Complainant has presented evidence that her
qualifications are so superior to those possessed by the selected candidates that the Agency’s
articulated reasons are shown to be a pretext for discrimination. We decline to substitute our
assessment of Complainant’s qualifications for the Agency’s rating process which took into
account the specific skills identified by the evaluation team and the Deputy Director.

CONCLUSION
Based on a thorough review of the record, we AFFIRM the Agency’s Final Decision, finding
no discrimination.
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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
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

(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 13, 2015