[Redacted], Nida R., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2022001645 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nida R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2022001645 Agency No. HS-CBP-00017-2021 DECISION 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 January 6, 2022 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 During the period at issue, Complainant worked as a Human Resource Specialist, GS-14, at the Agency’s Office of Human Resources Management, Human Resources Policy and Programs Directorate, Labor and Employee Relations Division in Washington, D.C. On November 5, 2020, Complainant filed a formal EEO complaint claiming that the Agency subjected her to disparate treatment based on her race (Black), color (Black), sex (female) and in reprisal for prior protected EEO activity (participation and oppositional)2 when: 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. 2 Complainant testified that she filed a prior EEO complaint in 2015 which involved hostile work environment allegations against her supervisor, the Labor Relations Branch Chief. Complainant identifies her supervisor as the same responsible management official in the instant complaint. 2022001645 2 1. Complainant was not selected, on two occasions, for temporary promotion/detail assignments: (a) On May 20, 20219, Complainant became aware that her co-worker (Co-Worker 1), a GS 14 Labor Relations Branch Human Resources Specialist and a white male, was approved for a non-competitive, temporary promotion to the position of Labor Relations Branch Chief, GS-0201-15, for a period not to exceed 120 days effective on June 23, 2019. Consequently, Co-Worker 1 served as Acting Branch Chief until approximately September 19, 2019. (b) Sometime between May and September 2019, Complainant asserts that she became aware of her supervisor’s September 2019 request, and the Customs and Board Protection approval, of a non-competitive, temporary appointment of Complainant’s Co-worker (Co-Worker 2), a GS -15 Labor Relations Board Human Resources Specialists/Chief Negotiations, and white male, to the position of Acting Labor Relations Branch Chief from October 2019 through October 2020. 2. On or about August 21, 2020, management created a competitive selection process for the Acting Deputy Director, Labor Relations position, which required Complainant to compete for the position that was previously give to two White males non-competitively, who simply “asked” to be put in the position. 3. On September 25, 2020, Complainant learned she was not selected for a 90-day temporary detail assignment to the position of Acting Deputy Director, Labor Relations, GS-0201-15, advertised via email solicitation dated August 21, 2020. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On January 6, 2022, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination or unlawful retaliation.3 3 The record indicates that the Agency initially dismissed claims 1a and 1b on procedural grounds which Complainant disputes on appeal. Nevertheless, the Agency adjudicated these claims on the merits. Therefore, we review the merits of these claims in our decision below and need not address the Agency’s initial procedural grounds for dismissal. 2022001645 3 The instant appeal followed. On appeal, Complainant argues that the EEO investigator failed to properly investigate the accepted issues. Specifically, Complainant notes that the investigator did not inquire from the Selecting Official, regarding her non-selection identified in claim 3, when he became aware of her prior protected EEO activity, and the investigator failed to ask the witnesses leading and non-objective questions. Additionally, Complainant further argues that the report of investigation (ROI) failed to include one of her rebuttal statements, and the EEO investigator failed to provide her copies of the supporting documentation management officials referenced in their affidavit so that she could address this evidence in her rebuttal statement. ANALYSIS AND FINDINGS Preliminary Matter - Investigative Record As an initial matter, we address Complainant’s arguments on appeal that, in pertinent part, the investigative record was incomplete. Namely, that the record failed to include an additional rebuttal statement and failed to include evidence of the documents some management officials referred to in their testimony. However, Complainant has not provided any evidence that she submitted an additional rebuttal statement to the EEO investigator that was omitted, or that she requested from the EEO investigator a copy of the evidence cited in certain management officials’ testimony. Additionally, Complainant’s assertion that the EEO investigator failed to ask the Selecting Official when he became aware of her prior EEO activity is also unpersuasive. Even if true, the record supports a finding that the Selecting Official simply upheld the interview panel’s recommendation to hire the Selectee rather than Complainant, indicating he was not a primary decision-maker in the non-selection. Therefore, the failure to fully explore his knowledge of Complainant’s prior protected activity was not reversible error. For these reasons, we find that, contrary to Complainant’s assertions, the investigative record is complete. Merits of the Claims 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). 2022001645 4 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). Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for its actions. Non-Selection for Detail Positions (Claim 1) Complainant testified that she was qualified to serve in the Acting Branch Chief temporary detail positions because she had already served in a GS-14 position for more than 52 weeks. Complainant further asserted that five women of color, including herself, were eligible for the detail positions. However, her supervisor (White, male) only selected two White males (Co- Worker 1 and Co-Worker 2) for the positions. Complainant also noted that there were no vacancy announcements posted for the temporary details. Nevertheless, Complainant acknowledged that management had the discretion to appoint employees to higher graded positions without announcement for appointments not exceeding 120 days. We note that Complainant’s supervisor clarified that before December 2020, for long-term acting roles, the acting Labor Relations Director or Deputy Director were recommended to the Executive Director and the Deputy Assistant Commissioner based on an employee’s knowledge and ability. Complainant’s supervisor also indicated that an announcement for a temporary/acting position was issued for the first time in December 2020. Additionally, Complainant’s supervisor explained that absent a lateral temporary reassignment, temporary promotions were limited to no more than 120 days. May - June 2019 Detail Selection (Claim 1a) Complainant’s supervisor explained that Co-Worker 1 began serving on or about May 19, 2019, a 120-day temporary promotion as the Acting Deputy Director, Labor Relations. Complainant’s supervisor further explained that in May 2019, he accepted a position as the Labor Employee Relations Director and that the outgoing Acting Labor Relations Director had recommended that Co-Worker 1 fill his position as the Deputy Director, Labor Relations. Complainant’s supervisor noted that the outgoing Acting Labor Relations Director submitted her recommendation to the acting Executive Director (acting Executive Director 1a) who approved the recommendation and the Deputy Assistant Commissioner ultimately approved Co-Worker 1’s selection. 2022001645 5 September 2019 Detail Selection (Claim 1b) Complainant’s supervisor testified that he requested that Co-Worker 2’s lateral placement (no change in grade, title, or pay) into the Acting Deputy Director position because Co-Worker 2 possessed the knowledge and ability to immediately step in and fill the position; the appointment would not disrupt the work flow of the Labor Relations division; and because Co-Worker 2 was already a GS-15, which would have eliminated the need to temporarily promote another employee into the position. Specifically, Complainant’s supervisor noted Co-Worker 2’s prior role as the Chief Negotiator, a management position, which allowed him to easily serve as the acting Deputy. Complainant’s supervisor further noted that Co-Worker 2 had previously requested opportunities to gain supervisory experience. Complainant’s supervisor indicated that his recommendation was approved by the acting Executive Director (acting Executive Director 1b) and the Deputy Assistant Commissioner. Complainant’s supervisor also clarified that a personnel action was not completed for the acting assignment because Co-Worker 2 was making a lateral move within Labor Relations. Acting Branch Chief Selection Process, August 2020 (Claim 2) Complainant asserted that previously, qualifications and resumes were never part of the process for selecting employees for the Acting Deputy Director, Labor Relations position because the position was a non-competitive appointment. However, the record indicates that on August 5, 2020, Complainant emailed management requesting that employees be notified “when details and all other opportunities are available that are career enhancing.” Thereafter, the record reflects that the Acting Executive Director 1c’s decision to create a selection process in August 2020 was consistent with Complainant’s August 2020 request. The Acting Executive Director 1c explained that he created the selection process because of his practice of allowing employees in the same grade to compete for detail opportunities. The Acting Executive Director 1c further explained that his decision was based on his past practice as the Director of the National Programs Division. Similarly, Complainant’s supervisor, who was serving as the acting Deputy Executive Director, asserted that the acting Executive Director 1c and the Assistant Commissioner determined that an announcement would be made for the temporary details to the Labor Relations Deputy Director and Chief Negotiations positions, effective October 2020. Complainant’s supervisor also explained that the Chief Negotiations position was included in the announcement because Co-Worker 2 was expected to begin paid parental leave from October 1, 2020 through December 2020. We note that Complainant’s supervisor indicated that he did not recall Complainant asking specifically to serve as Acting Deputy Director before she officially requested in August/September 2020. However, he indicated that he had asked Complainant on various occasions to sever as the acting supervisor in his absence for short durations (one - five days) between October 2017 and May 2019. 2022001645 6 Regarding Complainant’s assertion that other employees, specifically White males, simply “asked” and management granted their requests to serve in a temporary position, Complainant’s supervisor explained that selections were not made solely on an employee’s request. Rather, Complainant’s supervisor explained that “attention was given to employees who specifically stated during career development meetings their desire to gain supervisory experience.” Consequently, Complainant’s supervisor noted that Co-Workers 1 and 2 were intentional about seeking supervisory experience to prepare for future opportunities. In contrast, Complainant’s supervisor could not recall an instance where Complainant definitively indicated what she wanted to do in the future or expressed intentions to act as a supervisor. Acting Branch Chief Selections Process, September 2020 (Claim 3) Complainant explained that an email was sent to all Human Resources Policy and Programs Directorate GS 14 employees to apply for the Deputy Director, Labor Relations and/or the Chief Negotiator position. Complainant further explained that she submitted her letter of interest and was interviewed by a four-member interview panel consisting of one black male, two white males, and one black female. Complainant indicated that she completed her interview without issue and that the Acting Executive Director 1c was the Selecting Official. However, Complainant also noted that her prior Supervisor, who was now Complainant’s second level supervisor, was also an interview panel member. Complainant further argued that she was more qualified for the position than the Selectee (female). Specifically, Complainant noted that the Selectee was a supervisor in the Labor Employee Relations Field, while Complainant had experience working in Human Resources Management Headquarters Labor Relations for over nine years. Complainant noted that her experience at Headquarters was significant because she had the technical knowledge required for the position that was different from the knowledge gained in the Field. The record indicates that four candidates, including Complainant, submitted statements of interest for the Deputy Director position. All four of these candidates were asked the same four interview questions and were ranked on a scale of 1 to 5 by interview panel. The panel consisted of Complainant’s supervisor, the Senior Policy Advisor, the Acting Executive Director 1b, and the Acting Executive Director 1c. Complainant’s supervisor indicated that the candidates were assessed on their leadership skills, oral communication skills, content of response, examples of bargaining experience, and overall work experience. Complainant’s supervisor denied making any recommendations to the Selecting Official (the Acting Deputy Executive Director 1c) before the interviews concluded. Instead, Complainant’s supervisor indicated that by general consensus, the interview panel decided, following the interviews, that the Selectee was the best qualified candidate for the position and Complainant was the runner-up. Testimony from the Acting Executive Director 1b and the Acting Executive Director 1c corroborated Complainant’s supervisor’s assessment of Complainant’s interview performance when compared to the Selectee. 2022001645 7 Complainant’s supervisor noted that Complainant lacked substance on two of the four interview questions and only provided a few examples of her experience. In contrast, Complainant’s supervisor indicated that the Selectee was “very articulate during her interview” and provided “numerous” examples of negotiations and supervisory/leadership experience. Although Complainant was not selected, Complainant’s supervisor indicated that Complainant was selected to serve a temporary detail for the Acting Deputy Director position from January 20, 2021 to April 2021, which occurred after the Selectee’s detail concluded in January 2021. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on her race, sex, color, and reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding no discrimination or unlawful retaliation was established. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2022001645 8 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001645 9 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 December 6, 2022 Date