0120090516
10-28-2010
William F. Franks, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Citizenship and Immigration Services), Agency.
William F. Franks,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120090516
Hearing No. 550-2008-00135X
Agency No. HS-07-CIS-001258
DECISION
Complainant filed an appeal with this Commission concerning his complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency's decision, finding no discrimination.
BACKGROUND
The record reveals that, during the relevant time, Complainant was employed as a District Adjudications Officer (DAO), at the Agency's Citizen & Immigration Service in Seattle, Washington. Report of Investigation (ROI), at 5. Believing that he was a victim of discrimination, Complainant sought counseling and subsequently filed a formal complaint.
Complainant, alleged discrimination on the bases of sex (male), disability (10-point compensable veteran)1, and age (over 40) when, on January 8, 2007, Complainant became aware that he had not been selected for an Immigration Officer position, GS-1801-11/13, with the Fraud Detection and National Security Division, as announced under vacancy number CIS-113553-FDS (SEA).
At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ.
At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ.
On May 7, 2008, an AJ granted the Agency's motion for summary judgment with regard to the disability claim and issued a decision without a hearing on the disability issue. The AJ found that there was no genuine issue of material fact in dispute, and concluded that Complainant had not been discriminated against on the basis of disability. Specifically, the AJ found the Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
Thereafter, the AJ conducted a hearing. Following a hearing, an EEOC Administrative Judge (AJ) issued a decision on August 27, 2008, finding that Complainant had not been discriminated against on the bases of sex or age. Specifically, the AJ found that the Agency presented legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut.
On September 18, 2008, the Agency, fully implementing the AJ's decision, issued a decision finding no discrimination. Complainant appealed from that decision.
On appeal, Complainant contended that the AJ erred and Complainant was entitled to a reversal of the judge's decision. Specifically, Complainant asserted that the AJ committed errors in the hearing by upholding a subjective, arbitrary and capricious selection process and finding no evidence of discrimination. Complainant claimed that the AJ erred in granting summary judgment. Complainant argued that the AJ erred in denying Complainant's due process rights. Complainant's Appeal, at 1.
The Agency did not file a response to Complainant's appeal.
ANALYSIS AND FINDINGS
Summary Judgment
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition.
Upon review, we find summary judgment was appropriate as no genuine issues of material fact exist. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant stated in his affidavit that his military service-related disabilities include, "a burn on the leg, knee problems, a chipped bone on the elbow, hernia, hearing loss, severe ringing in the ears, injury above the eye and more." ROI, at Exhibit 6. Even assuming that one or a combination of these physical impairments actually rises to the level of disability, there is no evidence in the record to suggest that any of the relevant Citizen & Immigration Service directors were aware of Complainant's disability. In his response to the Agency's motion, Complainant's claims that the "Agency did not prove the Field Director was unaware of Complainant's disability. However, the Agency does not have the burden of proof on this element of Complainant's prima facie case.
The Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its nonselection. Furthermore, Complainant failed to show, by a preponderance of the evidence, that he was discriminated against on the basis of disability.
Hearing
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its nonselection. The Chief of the Office of Fraud Detection and National Security (FDNS; hereinafter Chief), the selecting official, stated that he relied heavily on the recommendations of the manager or director out in the relevant field office. The Chief said that he delegated the review and recommendation process to his Chief of Staff (COS), who coordinated the review of resumes and recommended decisions with the applicable field managers in each candidate's chain of command. ROI, at Exhibit 28.
The Chief asserted that he made selections based upon imput he received from these managers and the COS. The Chief claimed that it was his practice or policy that he relied upon the manager who had to work with and supervise the employees, and in most cases knew the employees because the Chief's office did not fund relocation. The Chief argued that he did not inject himself unless there was a disagreement. The Chief stated that he simply signed the certificate. The Chief estimated that, in the hundreds of FNSA selections he has made, he has had reason to question the local director's recommendation in three of them. Hearing Transcript, at 50.
The COS stated that, generally, the recommendations that he received from the field were perfectly fine, and there wasn't any reason to go back and ask them to consider someone else. The COS said that, in the over 400 selections that he was involved in, he was pretty sure that there were not more than three or four of these cases where there was reason to disagree. Hearing Transcript, at 78-79.
The COS asserted that he received a recommendation from the Seattle District Director (Director) favoring the selection of the selectee. Hearing Transcript, at 87.
The Director, the recommending official, stated that the selectee had been a valuable employee of Immigration and Naturalization Service/Citizen & Immigration Services (INS/CIS) since 1995. The Director said that the selectee began her career as a Records Technician, progressed to Information Officer and then Adjudications Officer. The Director asserted that the selectee had been an Adjudications Officer for eight years. The Director reported that the selectee had exceptional ability in the application of the Immigration Naturalization Act (INA) and was an excellent writer. The Director argued that the selectee had consistently been given their most complex cases work to complete. The Director claimed that, in addition to the selectee's technical expertise, she had been called on to testify on behalf of her Citizen & Immigration Services/Immigration and Customs Enforcement (CIS/ICE) in removal proceedings. The Director articulated that the selectee spoke, read, and wrote fluent Korean and had served both the Adjudications Section and FDNS Officers as an interpreter. The Director stated that the selectee had gained experience and proficiency in conducting database searches, including Lexis Nexus, and at conducting interviews of applicants to determine eligibility for a benefit and the presence or absence of fraud. The Director said that the selectee had written several denials for fraud that have been sustained. The Director asserted that the selectee had consistently received outstanding evaluations and was well respected by both her supervisors and her peers. ROI, at Exhibit 20.
The Director stated that the selectee had the respect of her peers and supervisors and this selection would boost morale as it showed up and coming officers that there was a possibility to move up, if you were dedicated to the job and were willing to apply yourself. ROI, at Exhibit 28.
The Commission agrees with the findings by the AJ and the Agency. Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Furthermore, Complainant failed to show that his qualifications for the Immigration Officer position were plainly superior to the selectee's qualifications or that the Agency's action was motivated by discrimination. Moreover, Complainant failed to show, by a preponderance of the evidence, that he was discriminated against on the bases of sex or age. Furthermore, the Commission finds that the AJ's decision is supported by substantial evidence.
CONCLUSION
The Agency's decision finding no discrimination is AFFIRMED.
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.
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
October 28, 2010
__________________
Date
1 The Commission does not address in this decision whether Complainant is a qualified individual with a disability.
??
??
??
??
2
0120090516
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013