U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Collin R.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019004143 Agency No. HS-ICE-00989-2017 DECISION On May 24, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 25, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 On June 5, 2017, Complainant, an applicant for employment with the Immigration and Customs Enforcement (ICE), Department of Homeland Security, filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on sex (sexual orientation) when, on January 17, 2017, he was notified that he was found unsuitable for the position of Deportation Officer, GL-1801-05/07, advertised under Vacancy Announcement Number (VAN) LAG-FBO-1534277-AE-096, and the Agency rescinded its tentative offer of employment. After the investigation of the claim, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on April 25, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 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. 2019004143 2 The instant appeal followed. ANAYLSIS AND FINDINGS 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, she must first establish a prima facie 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 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 Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. On January 14, 2016, the Agency informed Complainant that he had been tentatively selected for the Deportation Officer position pending, in part, on a background investigation an suitability determination. On January 12, 2017, the Agency issued Complainant a letter stating that Complainant had been determined unsuitable for the Deportation Officer position for Misconduct in Employment, Dishonest Conduct, and Criminal Conduct in accordance with Title 5 of the Code of Federal Regulations (C.F.R.) section 731.203(b). On January 17, 2017, the Agency’s Office of Human Capital issued Complainant a letter rescinding its tentative offer of employment. The Personnel Security Specialist (“Security Specialist”) explained that during the required background investigation, it was determined that Complainant did not meet the qualifications and/or eligibility requirements as outlined in the Deportation Officer vacancy announcement. 2019004143 3 Specifically, the Security Specialist stated that Complainant had previously been employed with the Agency as a Supervisory Detention and Deportation Officer, a position he resigned from in 2009. The Specialist stated that an inquiry into this resignation as part of the background investigation revealed that there were multiple allegations of misconduct about Complainant during his prior employment including providing false statements to the Office of Professional Responsibility (OPR), lack of candor, misuse of a government vehicle and use of his position or authority for other than official purposes. It was determined that Complainant resigned from his position under the cloud of these allegations. Based on this information, the Agency determined Complainant was not suited for rehire and rescinded its provisional offer. Beyond his bare assertions, Complainant provided no evidence that the articulated reason for rescinding the offer was a pretext for discrimination. Complainant does not dispute that he was accused of engaging in misconduct in 2009 that led to his prior resignation from the Agency. While Complainant appears to argue that these allegations were motivated by discrimination, the events of 2009 are not part of the instant complaint and do not appear to have been challenged in a timely manner at the time. All other new hires to the 2016 position were subjected to the same type of background investigation and suitability determination. There is no evidence that any other provisional selectee was treated more favorably. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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 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. 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. 2019004143 4 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. 2019004143 5 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 April 24, 2020 Date
