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

Equal Employment Opportunity Commission

May 26, 2022

Appeal No. 2020004596 (E.E.O.C. May. 26, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilbur R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2020004596 Agency No. HS-CBP-02361-2018 DECISION On August 18, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the July 17, 2020, final decision 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. At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist, GS-0391-12, at the Agency’s Enterprise Services, Office of Information and Technology, West Texas Division in Eagle Pass, Texas. On October 30, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (regarded as), age (1956), and reprisal for protected activity under Section 501 of the Rehabilitation Act of 1973 and the Age Discrimination in Employment Act of 1967, when, on July 31, 2018, Complainant learned that he was not selected for the Telecommunications Manager, GS-0391-13, position advertised under Job Opportunity Announcement number OIT-SMP-10146754-EMM, located in Eagle Pass, Texas. 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. 2020004596 2 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 Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on age, disability, and in reprisal, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for his non-selection was 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. Aff. v. Burdine, 450 U.S. 248, 256 (1981). The Agency’s legitimate, nondiscriminatory explanation for not selecting Complainant was that while he was highly qualified and experienced, he simply did not receive as high of a cumulative application score as the Selectee. Based on the record, we agree with the final decision that Complainant did not establish that his qualifications were plainly superior to that of the Selectee. On appeal, Complainant contends that the Agency improperly held two interviews so that management could essentially preselect a candidate. Complainant notes the close relationship management officials had with the candidates. Complainant also states his concerns that his past EEO activity impacted his application processes. However, Complainant did not provide evidence to support his assertions. Therefore, we conclude that the final decision correctly determined that Complainant did not establish pretext by preponderant evidence in the record. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2020004596 3 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). 2020004596 4 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 May 26, 2022 Date