Casie S.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 16, 2017

0120150022 (E.E.O.C. Feb. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Casie S.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120150022

Hearing No. 570-2012-00364X

Agency No. HS-CBP-00974-2011

DECISION

On September 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 27, 2014, final order concerning her 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Staff Accountant
(SA), GS-0510-14, at the Agency’s Financial Policy Branch, Financial Operations Division,
Office of Administration (OA), located in Washington, D.C. On July 15, 2011, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), age (49), and in reprisal for prior protected EEO activity
when: (1) on March 24, 2011, she was not selected for the position of Supervisory Staff
Accountant, GS-0510-15, advertised under Vacancy Announcement Number IHC-423634-
EWCMP; (2) in or about April 2011, she was not considered for a rotating Supervisory Staff

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.
0120150022

2
Accountant position; (3) on June 13, 2011, she was deemed unqualified for her current
position; and (4) on July 3, 2011, she was reassigned to the position of Management and
Program Analyst, GS-0343-14.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s November 16, 2012, motion for a
decision without a hearing. The AJ issued a decision without a hearing on June 16, 2014. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

UNDISPUTED FACTS

The AJ noted the following undisputed facts. On February 16, 2011, the Agency advertised
the position of Supervisory Staff Accountant (SSA), GS-0510-15, under Vacancy
Announcement Number: IHC-423634-EWCMP. According to the Vacancy Announcement, a
candidate could potentially qualify under several categories. Complainant applied for the
position under the following category of qualifications:

“Combination of education and experience-at least 4 years of experience in
accounting, or an equivalent combination of accounting experience, college level
education, and training that provided professional accounting knowledge and
must also include one of the following:

1) 24 semester hours in accounting or auditing courses of appropriate type and
quality (which may include 6 hours of business law);

2) A certificate as a Certified Public Accountant or a Certified Internal Auditor
(obtained through written examination); or

3) Completion of the requirements for a degree that included substantial course
work in accounting or auditing (e.g., 15 semester hours), but that does not
fully satisfy the 24 semester hour requirement, provided that: (a) you have
successfully worked at the full-performance level in accounting, auditing, or
a related field; (b) at least two professional accountants have determined that
you demonstrate a good knowledge of accounting (equal to four years of
study); and (c) except for literal non-conformance to the requirement of 24
semester hours in accounting, your education, training, and experience fully
meet the specified requirements.”

A Human Resource Specialist, Indianapolis Hiring Center, Customs and Border Protection
(HRS1), performed a qualification review of applicants for the position. He was not aware of
Complainant’s race or age. He was aware of her sex based on her name. HRS1 believed that
0120150022

3
Complainant did not qualify for the position because she did not have the minimum education
credits in accounting. As a result she was not placed on the Best Qualified (BQ) list and was
not referred to the selecting official for consideration. A Supervisory Human Resources
Specialist (HRS2) supervised the qualification review for Complainant's application. She
concurred in HRS1’s assessment that Complainant lacked the proper accounting qualifications.
HRS2 was not aware of Complainant's race or age at the time of the review process. The
selectee (SE) possessed an accounting degree and was a Certified Public Accountant.

When Complainant’s second-line supervisor (S2) learned that Complainant did not make the
BQ List, she requested the Human Resources Management office reconsider its decision not to
qualify Complainant for the position. The Special Advisor for Human Resources (HRS3)
issued a memorandum, dated June 13, 2011, in which he concluded that Complainant was not
qualified for the SSA, GS-15, position. HRS3 was not aware of Complainant's race, age, or
her protected EEO activity. HRS3 also determined that Complainant was incorrectly
considered qualified for the position of Staff Accountant at the GS-12, GS-13, and GS-14
grade levels and therefore, her selection and placement in those positions was in error. On or
about July 3, 2011, Complainant's position was reclassified to Management and Program
Analyst, GS-0343-14. Complainant’s first-line supervisor (S1) and S2 made the decision to
discontinue temporary rotations into the position of Supervisory Accountant.

Complainant's prior EEO activity consisted of her initial contact with the EEO office on April
8, 2011, for the instant complaint and the subsequent mediation sessions involving S1 and
HRS2.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

Upon review of the record, we agree with the AJ that the case was appropriate for summary
judgment. We also agree with the AJ’s findings and conclusions that Complainant failed to
present evidence that the Agency’s articulated legitimate, non-discriminatory/retaliatory
reasons for its employment actions were a pretext for discrimination or were otherwise
motivated by discriminatory or retaliatory animus.

With respect to the non-selection, HRS1, with the approval of HRS2, determined that
Complainant lacked the accounting credits of at least 15 hours, as set forth in the Office of
Personnel Management (OPM) classification standards. Consequently, Complainant did not
qualify to be placed on the BQ list. HRS1 determined that Complainant held a Business
Management degree but did not satisfy the educational requirements in the field of accounting
0120150022

4
under any of the prescribed combinations. The AJ noted that while Complainant claims the
Agency's interpretation of OPM guidance was too rigid, and other more relaxed interpretations
were just as valid, the record is devoid of evidence that the interpretation adopted by the
Agency was motivated by discriminatory/retaliatory animus.

With respect to the reclassification claim, the AJ noted that HRS2 pointed to Agency
regulations that dictate immediate compliance if there is an erroneous classification and
appointment. Based on this requirement, she determined that Complainant had to be
reassigned out of the Staff Accountant GS-510-14 position, for which she was not qualified,
and into a series (at the same grade and step) for which she met the OPM qualification
standard. The AJ further noted that HRS3 made this same determination in his response to
Complainant's manager's request for reconsideration. He found that despite information on
Complainant's resume that she had completed a minor in Accounting, her record from the
college did not support that. The AJ concluded that even viewing the record in the light most
favorable to Complainant, Complainant’s disagreement with HRS2’s interpretation of OPM
standards is not enough to create a genuine issue of fact that she harbored discriminatory or
retaliatory intent, and the record is devoid of evidence of such animus.

With respect to the claim that Complainant was denied the opportunity to rotate into the
position of Supervisory Staff Accountant, the AJ noted that S1 attested that selections for
rotations into the Supervisory Staff Accountant position were discontinued because a
permanent selection for the position was imminent. S1 further averred that because
Complainant's academic qualifications had been deemed insufficient she would not have passed
the human resources vetting to be detailed into this position, and would not qualify to act in
this position. The AJ noted that Complainant failed to present evidence that the Agency's
explanations should not be believed. Furthermore, the AJ found the record devoid of evidence
that the Agency's actions were motivated by discriminatory or retaliatory animus.

CONCLUSION

Based on a thorough review of the record, we find that the record is devoid of evidence of
discriminatory or retaliatory animus and AFFIRM the Agency’s final order which adopts the
AJ’s summary judgment decision finding no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
0120150022

5
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 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. The requests 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 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. Such requests do not alter the
0120150022

6
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 16, 2017
Date