[Redacted], Terrell G., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021005077 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrell G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (U.S. Secret Service), Agency. Appeal No. 2021005077 Agency No. HS-USSS-02254-2020 DECISION On September 18, 2021, 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 August 16, 2021 final decision concerning his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Resident Agent at the Agency’s Roanoke Resident Agency in Roanoke, Virginia. On November 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Asian) and sex (male) when: 1. On September 10, 2020, Complainant became aware that the Agency did not select him for a promotion to the Assistant to the Special Agent in Charge (ASAIC) position, GS-181-14, Office of Investigations (OI), Forensic Services Division (FSD) - National Center for Missing and Exploited Children (NCMEC) advertised under Vacancy Announcement Number VAN) 20148. 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. 2021005077 2 2. On September 10, 2020, Complainant became aware that the Agency did not select him for a promotion to the ASAIC position, GS-1811-14, OI, London Resident Office- Paris Field Office advertised under VAN 20151. 3. On September 10, 2020, Complainant became aware that the Agency did not select him for a promotion to the ASAIC position, GS-1811-14, OI, Pittsburgh Field Office, advertised under VAN 20155. 4. On September 24, 2020, Complainant became aware that the Agency omitted a Statement of Qualifications Requirement (SOQ) from the OI, FSD, NCMEC, advertised under VAN 20148. 5. On September 24, 2020, Complainant became aware that the ASAIC position, GS-1411-14, OI, FSD, NCMEC, advertised under VAN 16095, for which he applied for between June 15 through 29, 2016, was predetermined to be filled by a Caucasian female.2 Complainant asserts that he is more qualified than any of the Selectees for the positions. See Report of Investigation (ROI) at 227-28; 230. He further contends that removing the SOQ from the vacancy announcement in claim 4 allowed for multiple bids from individuals who would not otherwise have been qualified and if the SOQ had been included, that he would have been the only applicant who had held the exact position for three years. See ROI at 230-31. The Assistant Director, who was the selecting official, stated that each of the Selectees for the positions was recommended as the best qualified for the position and his general practice is to choose a candidate from those recommended by the Special Agent in Charge (SAIC) for the vacancy. See ROI at 235-38. The Division Chief stated that SOQ’s are not mandatory and are at the discretion of the directorate soliciting for the vacancy. See ROI at 252. The Special Agent in Charge for the vacancy in claim 1 stated that he recommended that the directorate not include a SOQ because it was not necessary as the qualifications were commensurate with any GS-14 supervisor position. See ROI at 256-57. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision dismissed claim 5 pursuant to 29 C.F.R. §1614.107(a)(2) for untimely counselor contact, finding Complainant did not contact an EEO counselor until four years after the discriminatory incident.3 2 Complainant’s formal complaint indicated race and sex/gender identity as the bases. See Report of Investigation (ROI) at 20. We find upon a review of the record that Complainant intended to raise race (Asian) and sex (male) as the bases. 3 We note that the Agency’s decision inadvertently stated that it was dismissing claim 4 for untimely counselor contact but the decision makes it clear that it was claim 5 that was dismissed. 2021005077 3 The decision went on to find that the Agency articulated legitimate, nondiscriminatory reasons for all of the non-selections and for omitting the SOQ from the posting in claim 4, and that Complainant did not establish that the Agency’s reasons were a pretext for discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed the Agency’s decision. In response, the Agency filed a brief urging affirmance of its decision. 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. (Aug. 5, 2015) (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”). Untimely Counselor Contact We will address the Agency's dismissal of claim 5 as a discrete act of discrimination. 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Agency dismissed claim 5, regarding Complainant’s non-selection for a vacancy which he applied for in 2016, for untimely counselor contact. Complainant stated that he was not aware of the discrimination until he received an email from a coworker who told him that the vacancy announcement in that claim was intended for someone else. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See Grier v. Dep’t of the Air Force, EEOC Appeal No. 0120093482 (Feb. 16, 2010). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. In this case, Complainant was notified of the non-selection for that vacancy on June 16, 2016 and failed to contact a counselor until September 21, 2020, more than four years after the incident. 2021005077 4 We note that Complainant only stated that he was not aware of the discrimination until he received an email from a coworker informing him that the vacancy announcement was intended for another person, which does not in itself indicate discrimination occurred.4 We find that Complainant should have developed a reasonable suspicion of discrimination from the time he learned of his non-selection. Furthermore, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Here, Complainant did not contact an EEO Counselor until more than four years after being notified that he was not selected. Complainant has failed to provide sufficient justification for extending or tolling the time limit. We therefore find that the Agency properly dismissed claim 5 for untimely counselor contact. See Adriene B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2020003600 (Aug. 18, 2020). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 Dep’t of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, 4 We note that pre-selection, as Complainant alleges took place, does not in itself violate Title VII. See Cathy M. v. General Srvcs. Admin., EEOC Appeal No. 0120141650 (Jan. 11, 2017). 2021005077 5 EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Assistant Director stated that Complainant was not among the candidates recommended as best qualified by the SAIC for the vacancy in claim 1 and Selectee 1 was recommended for the position because of his strong background in supporting the NCMEC as a polygrapher. See ROI at 235. With respect to claim 2, the Assistant Director explained that Complainant, unlike Selectee 2, did not have the Criminal Investigations Division or London-based experience which was preferred for the position. See ROI at 236. With respect to claim 3, the Assistant Director stated that Complainant was not on the list of recommended candidates. See ROI at 237-38. The record also included the Selection Certification for the vacancy in claim 3, indicating that Selectee 3 had extensive experience conducting criminal investigations and had worked in bank fraud and counterfeit cases and as a polygrapher in the Los Angeles Field Office. See ROI at 243-46. With respect to claim 4, the SAIC explained that including a SOQ was not mandatory and he decided that it was not necessary because the vacancy announcement language was commensurate with the general requirements for any GS-14 position. See ROI at 256-57. We further find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. We emphasize that there is no evidence in the record to indicate any discriminatory animus. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). Moreover, Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). It is well established that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation, which is not present here. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). We therefore affirm the Agency’s decision finding that Complainant did not establish that the Agency’s actions were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that he was subjected to discrimination as alleged. 2021005077 6 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 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). 2021005077 7 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. 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 February 7, 2023 Date