Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120121856 (E.E.O.C. Mar. 20, 2013)

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

,
Complainant,

v.

Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120121856

Hearing No. 570-2010-001150X

Agency No. HS-10-ICE-002783

DECISION

Complainant filed an appeal with this Commission concerning her complaint of unlawful
employment discrimination. For the reasons set forth herein, we AFFIRM the Agency’s
decision finding no discrimination.

BACKGROUND

The record reveals that, during the relevant time, Complainant was employed as an Inspector,
Physical Security Specialist (Law Enforcement Security Officer) under the Federal Protective
Service at the Agency’s National Protection and Programs Directorate (NPPD) in Washington,
D.C. Complainant sought EEO counseling and subsequently filed a formal complaint.

Complainant alleges that she was subjected to discrimination on the bases of sex (female) and
age (over 40) when on December 21, 2009, Complainant became aware that she was not
selected for the position of Supervisory Physical Security Specialist, GS-13, Federal Protective
Service (FPS), National Capital Region, as advertised under Vacancy Announcement No.
LAG-FPS-278431-SR-373.

At the conclusion of the investigation, Complainant received a copy of the investigative report.
Additionally, the Agency informed Complainant of her 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.
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On January 5, 2012, the AJ issued a decision without a hearing finding that there was no
genuine issue of material fact in dispute, and concluded that Complainant had not been
discriminated against as alleged. Specifically, the AJ found the Agency presented legitimate,
nondiscriminatory reasons for its actions, which Complainant failed to rebut.

On February 23, 2012, the Agency fully implemented the AJ’s decision finding no
discrimination. The Agency mailed the decision to Complainant's attorney and sent the
decision by an electronic mail message to Complainant. A United States Postal Service Track
and Confirm notification noted that the AJ's decision was delivered to Complainant's attorney
on March 1, 2012.

On March 22, 2012, Complainant filed the instant appeal. Complainant's appeal noted that she
had not received a final decision from the Agency. On March 26, 2012, Complainant, through
her attorney, submitted a statement in support of Complainant's appeal. Complainant, through
her attorney, said that the Agency had not issued a decision prior to filing this appeal. On
appeal, Complainant, through her attorney, argued that additional discovery was needed in this
case and the record had not been fully developed.

ANALYSIS AND FINDINGS

Initially, the Commission finds that Complainant timely filed her appeal. Additionally, the
Commission finds that the Agency’s investigation was adequate. Based on the record, it is
unclear why Complainant’s attorney claims to have not received a decision from the Agency.
Moreover, the Commission finds that Complainant has failed to show on appeal why the AJ’s
decision to issue summary judgment was incorrect.

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.

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Upon review, we find that summary judgment was appropriate as no genuine issues of material
fact exist. Regarding the Supervisory Physical Security Specialist position, the Agency
asserted that Complainant was not selected for the positions because she failed to achieve an
overall score of 135, which was the minimum score required for progression to a second
interview. The record revealed that Complainant’s name and that of eleven other candidates
were included on the certificate of eligibles forwarded to the FPS, National Capital Region.
All candidate application packets were reviewed and scored based on 17 identified elements
(mostly concerning specific experience for different skills). Complainant received a raw
application score of 138 and a weighted application score of 55. The candidates for the position
were interviewed by a panel, which included the Area Manager, the Financial Manager, and
the Supervisory Management and Program Analyst. Complainant was interviewed and was
awarded by the panel a raw interview score of 132 and a weighted interview score of 79.
Complainant’s total weighted score was 134 ([application score] + [interview score] =134).
In order to advance to a second interview, a candidate was required to attain a minimum
overall score of 135. Complainant failed to achieve the minimum compulsory score.
Complainant’s name was not forwarded to the interview panel for a second interview. Nine
candidates qualified for a second interview. The candidates achieved scores of 135 or greater.
Of the nine candidates, eight persons were selected for the positions (some of which, we note,
were female and over the age of 40). The Agency claimed that the rating process used by the
Agency was “an objective numerical scoring system used to credit the experience of each
candidate and evaluate each candidate’s responses to standardized questions.”

The Commission finds that Complainant failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons. Complainant has not shown how, for instance, any particular
experience element was scored incorrectly for her or the other candidates. Additionally, the
Commission finds that Complainant failed to show that her qualifications for the Supervisory
Physical Security Specialist position were plainly superior to the selectees’ qualifications or
that the Agency’s actions were motivated by discrimination. The Commission finds that
Complainant failed to show, by a preponderance of the evidence, that she was subjected to
discrimination on the bases of sex or age.

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 tends to
establish that:

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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
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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

March 20, 2013
Date