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

Equal Employment Opportunity Commission

Sep 14, 2017

0120151462 (E.E.O.C. Sep. 14, 2017)

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

Christopher D.,
Complainant,

v.

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

Appeal No. 0120151462

Agency No. HS-CBP-00839-2014

DECISION

On March 12, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 10, 2015, 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. For the following reasons, the U.S.
Equal Employment Opportunity Commission (EEOC or Commission) AFFIRMS the Agency’s
final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, GS-0343-13, in the Operational Support Division, at Rio Grande Valley Sector
(RGV), in Edinburg, Texas. On June 4, 2014, Complainant filed an EEO complaint alleging that
the Agency discriminated against him based on national origin (Hispanic) when, on March 27,
2014, Complainant learned that he was not selected for the position of Supervisory Management
and Program Analyst - Director of Logistics (DL), GS-0343-14, advertised under JAN
MHCBPMP-994760-EAL.

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.
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After 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 EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29
C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

FACTUAL BACKGROUND

The Director of Logistics position vacancy announcement was open from November 19, 2013 to
December 3, 2013, under Job Opportunity Announcement (JOA) Number MHCBPMP-994760-
EAL. The JOA states this position is ideal for an expert in the management and/or human
resources field looking for an opportunity to support the mission of the Agency by providing
leadership and management skills to human resources and related programs and services. The
duties include: supervising a group of managers who are responsible for assessing the
productivity, effectiveness, and efficiency of logistical programs, and overseeing operations of
fleet management, facility details, health and safety programs and acquisition plans; determining
the organizational requirements in the areas of fleet management, facility details, health and
safety programs and acquisition plans; directing and coordinating the organization’s financial
and budget activities to fund logistical operations, maximize investments, and increase
efficiency; analyzing operations to evaluate performance of a department or its staff in meeting
objectives or to determine areas of potential cost reduction, program improvement, or policy
change; and representing the organization in meetings and conferences on subjects within your
assigned area. Additionally, the JOA noted that applicants who possess the following
experiences may be rated higher than applicants who do not possess these experiences: (1) basic
knowledge and experience in directing fleet maintenance operations; (2) basic knowledge and
experience coordinating construction project development, space planning, and special facilities-
related projects, as well as the day-to-day operations, in relation to buildings and premises; (3)
basic knowledge and experience in reviewing, evaluating, and analyzing work environments and
designing programs and procedures to control, eliminate, and prevent injury or disease caused by
physical, chemical, and biological agents or ergonomic factors; (4) basic knowledge and
experience consulting with logistics management teams to determine ways to optimize service
levels, maintain supply-chain efficiency, or minimize cost.

Complainant timely applied for the position on December 3, 2013. On December 18, 2013, the
Minneapolis Hiring Center (MHC) issued a Notice of Results and a Notification Letter notifying
him that he was found qualified for the position and would be referred to the selecting official as
a non-competitive eligible (alternate staffing) candidate. Also on December 18, 2013, three
certificates listing a total of 33 qualified candidates were issued to management.

After the certificates were issued, the Mission Support (MS) Director (D1) developed a matrix to
compare all candidates listed on the certificates. The areas of considerations were Leadership
(Team Building; Decision Making), Professionalism (Communication & Presentations/Oral &
Writing; Organization/Accomplishes Mission; Contacts), Technical Knowledge (Acquisition
Experience; Fleet Experience; Facilities & Health & Safety Experience; Supervisory
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Experience), Education, 360 Recommendation, and Interview. All aspects were scored on a
scale of 1 to 5 (1 being low, and 5 being high).

A total of 11 candidates were selected for an interview, including Complainant and the selectee
(SE). The interview took place on February 13, 2014. The Interview Panel consisted of the
Chief of Operational Support Division (RO), Chief of Operational Program Division (PM1), and
the Executive Officer (PM2). D1 was also present; however, she was not a part of the panel. All
candidates participated in the interview at the same time and responded to the same questions. A
total of seven questions were asked during the interview, each question could be scored from one
to five (i.e., outstanding, excellent, good, fair, poor, or no answer) with the total possible score
for the interview being 35.

After the interview, D1 added the interview scores to the matrix. The top three scores included:
Complainant with a matrix score of 51 plus an interview score of 19 (for an overall score of 70);
SE with a matrix score of 47, plus an interview score of 26 (for an overall score of 73); and
another applicant (C1) with a matrix score of 46, plus an interview score of 24 (for an overall
score of 70).

On February 24, 2014, the Acting Chief Patrol Agent (RO2), recommended SE as the primary
candidate for the position, with C1 as an alternate. The selection of SE was approved on March
14, 2014, by the Chief-Operations Division (SO), and SE entered on duty effective October 5,
2014. The MHC issued Complainant official notice of his non-selection on March 27, 2014.

Complainant asserts that the DL position was first opened agency-wide but was inexplicably
canceled and opened federal-wide, which was contrary to the MHC’s advice that the
announcement could be reposted federal-wide if an adequate pool of applicants was not received
once the agency-wide announcement closed. Complainant also states that none of the
candidates’ performance during the interview was outstanding on all questions; therefore, he
believes that the interview was only used to exclude from selection well-qualified minority
candidates. He believes that RO wanted to have Caucasian males for the DL position.

Complainant states he is well qualified for the position, has a proven record of performance at
RGV Sector, and has the organizational knowledge necessary to be successful in the position.
Complainant refers to the recommendation memorandum to refute the reasoning provided for
selecting SE. The recommendation states SE: (1) supervises six GS-12 unit managers and has
extensive logistical experience, as well as, leadership experience in both civilian and military
organizations; (2) has held positions as Director in the state of Minnesota, winning numerous
awards for excellence; and (3) is a National Guard Army Colonel. Complainant refutes those
three recommendation points as follows. (1) SE’s “extensive logistical experience” does not
directly apply to the RGV position; (2) the Agency Merit Promotion Directive No. 51335-015B
states “awards and appraisal will be considered as additional sources of information only. Mere
possession of a specific number of awards or a specific appraisal level will not, in and of
themselves, be factor in the evaluation process and will not be used to mechanically increase
ratings.” In addition, Complainant asserts that after reviewing SE’s resume and searching
Google, he could not find anything supporting SE’s claim that he had won the Baldridge awards,
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or any monetary compensation for the award; (3) Being a Colonel was not a requirement for the
position.

Complainant adds that the RGV Sector had this critical position open since 2012. RGV had
qualified and proven minority applicants ready to start as soon as selected. However, SE was not
able to start for an additional eight months after the selection was made. Complainant asserts
that RO’s willingness to leave the position open for over eight months for a non-minority
candidate, and wait for this candidate to be trained on the Agency’s unique programs, is difficult
to rationalize or to understand, especially after RO made at least two other accommodations for
SE (referring to the cancellation of the original announcement and adding SE’s name to the
matrix.)2

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”).

Upon review of the record, we agree with the Agency in concluding that the evidence does not
establish that the Agency’s articulated, legitimate, non-discriminatory rationale for its selection
was a pretext or otherwise motivated by discriminatory animus. Specifically, the record shows
that SE was hired at the recommendation of RO2, who is Hispanic. The record also shows that
RO2 based his recommendation on which applicant, according to the interview panel, received a
higher combined resume and interview score. The record reflects that SE received a higher
combined resume/interview score than Complainant. The interview panel unanimously
recommended SE for the position.

2 D1 testified that after completing the matrix, RO asked her to conduct another review of the
matrix because he believed that due credit had not been given to SE because he knew what SE’s
experience was and believed he should have been rated higher. D1 states she told RO that she
could only go by what was written on the resume, and some of the acronyms used were
unfamiliar to her. RO explained that he knew what the military acronyms meant, that SE had a
strong logistics background and he wanted SE to be interviewed, and requested another review
and rating be performed. RO also asked for another review of the resumes of two additional
applicants (C1 and C2) (national origin unknown).

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Complainant asserts that the Agency failed to follow established procedures in making the
selection. For example, Complainant asserts that the decision to open the vacancy to all federal
employees put him at a disadvantage. In addition, Complainant argues that the record establishes
that, against the views of the other hiring officials, RO recommended an increase in SE’s pre-
interview matrix score because he was familiar with the military acronyms SE listed on his
resume, which he believed warranted such an increase. Complainant further argues that even
though the increase in SE’s pre-interview matrix score was not implemented, he nevertheless,
was granted an interview ahead of five or six applicants who received a higher score. While the
decision to permit SE an interview ahead of other applicants may have been contrary to
customary hiring practices, the record is devoid of discriminatory animus on the part of any
management official. Moreover, the record supports the finding that management officials were
motivated by proper motives in finding the best qualified applicant to fill the DL position. The
record supports the finding that candidates for the DL vacancy were properly evaluated based on
their job-related knowledge, skills, and abilities, and that the best qualified candidates were
referred to the selecting official.

In addition, contrary to Complainant’s assertion, the record supports the Agency’s finding that
Complainant’s qualifications were not plainly superior to SE’s qualifications. SE’s resume
reflected 19 years of logistics experience, including nine years and ten months of supervisory
experience. In contrast, Complainant’s resume reflected seven years and ten months of logistics
experience, including three years of supervisory experience, and twelve years and nine months of
non-logistics supervisory experience. During the interview phase, members of the panel
indicated that SE’s interview responses stood out from the other candidates, reflecting training
and experience in logistics, and demonstrating that he was capable of handling multiple large-
scale, complex programs.

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 decision finding that Complainant did
not establish that he was subjected to discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

September 14, 2017
Date