0120114024
05-19-2015
Complainant v. Jeh C. Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Complainant
v.
Jeh C. Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120114024
Agency Nos. HS-09-CBP-003144-120105
HS-10-CBP-000982-120101
DECISION
Complainant timely filed an appeal from the Agency's final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency's proffered explanation for its non-selections was pretext to mask discrimination on the basis of reprisal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Entry Specialist, GS-1894-11, at the Agency's Houston Service Port (HSP) in Houston, Texas. Report of Investigation No. HS-09-CBP-003144-120105 (ROI 1). As an Entry Specialist, Complainant serves as a primary contact with Agency brokers, importers, and carriers on matters related to the processing functions regarding the importation of merchandise. Id. at 144.
In February 2009, Complainant applied for the position of Import Specialist, GS-1889-12, advertised under Vacancy Announcement Number (VAN) 234485. Id. at 47. The announcement noted that the selected candidate would serve as a Senior Import Specialist, "ensuring that routine work assignments for an assigned team are carried out . . ." Id. at 100.
Complainant filled out the Agency's on-line questionnaire, which assigns a score ranging from 70 to 100 points. Complainant received a score of 99. Id. at 49. Complainant and five other individuals were considered for the position and listed as candidates on the Certificate of Eligibles. Id. at 59. Complainant was ranked number one on the certificate. Id. at 60. However, the Port Director who served as the Recommending Official (RO) advised the SO that he would be returning the certificate without a selection, and the Selecting Official (SO) returned the certificate without taking any action. Id. at 87. In April 2009, Complainant learned that there was no selection.
On June 22, 2009, Complainant subsequently applied for the position of Senior Import Specialist, GS-1889-12, advertised under VAN 263360. Report of Investigation No. HS-10-CBP-000982-120101 (ROI 2), at 40. Complainant filled out the Agency's on-line questionnaire and again received a score of 99. Id. at 165. Thereafter, Complainant and five other candidates were referred to a three-person selection panel for consideration. Id. at 240. The panel included a GS-13 Supervisory Import Specialist, a GS-13 Supervisory Customs and Border Protection Officer, and a GS-12 Supervisory Entry Specialist. Id. at 78. The panel conducted interviews on August 4, 2009, for Complainant as well as the other five candidates. Id. Six questions were asked of each candidate and a rating between one and five was assessed for each question, with a possible total score of 30. Id. at 240. Complainant received an average score of 16 for the interview, which was the lowest average score of all the candidates interviewed. Id. The Port Director, who again served as the RO, once more determined that no selection would be made. Id. at 78. By e-mail dated September 15, 2009, from the Agency, Complainant was notified that the SO had returned the certificate for this position without action and that no selection was made. Id. at 243.
On January 27, 2009, Complainant contacted an EEO Counselor and filed EEO complaints on March 6, 2009,1 and November 13, 2009, alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On January 21, 2009, she was not selected for the position of Senior Import Specialist, GS-1889-12, advertised under Vacancy Announcement Number (VAN) 213021.
2. On April 8, 2009, she was not selected for the position of Import Specialist, GS-1889-12, advertised under VAN 234485.
3. On or about September 15, 2009, she was not selected for the position of Senior Import Specialist, GS-1894-12, advertised under VAN 263360.2
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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The Agency initially dismissed claim 1 for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency noted that the discriminatory event occurred on December 5, 2008, when Complainant received notification of the non-selection, but that she did not initiate contact with an EEO Counselor until January 27, 2009, exceeding the 45-day limitation period. The Agency noted that the deadline for Complainant to make initial contact with an EEO Counselor was no later than January 19, 2008. The Agency noted that Complainant did not present any reasonable justification to warrant an extension of the 45-day time limit.3
With regard to claims 2 and 3, the Agency found that it articulated legitimate, nondiscriminatory reasons for not selecting Complainant. The Agency noted that it did not select Complainant or any other candidate for the positions. The Agency noted that the Port Director wanted to expand the pool of applicants nationally because Complainant and the other candidates did not have the necessary local experience. The Agency further noted that Port Director did not recommend Complainant or any other candidate due to a lack of experience and leadership skills. The Agency noted that Complainant never attended the Import Specialist academy and was not certified as an Import Specialist. The Agency further noted that Complainant failed to follow directions and exhibited unprofessional behavior. The Agency found that Complainant failed to present evidence establishing that its reasons were pretext for reprisal.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, contends that she has provided credible evidence of discriminatory animus by the Port Director. Complainant contends that she was ranked number one on the Certificate of Eligibles for both positions. Complainant contends that the Port Director showed favoritism towards those of his own race, promoted his church in the workplace, and retaliated against employees. Complainant contends that although race and religion are not the bases for her complaints, the Port Director's actions show that he more than likely retaliated against her. Complainant also contends that the Port Director admitted that he asked a subordinate supervisor to identify African-American candidates on a best qualified list. Complainant contends that the Agency presented documentation showing that one of her strong points is leadership. Complainant contends that the Port Director's reasons are pretextual because the positions at issue do not require supervisory experience, as he asserts.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal, the Agency articulated legitimate, non-discriminatory reasons for its actions. The Port Director explained that no selections were made with respect to claims 2 and 3. ROI 1, at 59. The Port Director explained that the candidates who applied lacked leadership and experience for the positions. Id. The Port Director explained that he considered the vacancies leadership positions, requiring good people skills. Id. at 60. The Port Director further explained that Complainant is not an Import Specialist and had only limited knowledge of the responsibilities of an Import Specialist. Id. The Port Director explained that he was looking for an individual who demonstrated leadership, communication, and team-building skills. Id. at 61. The Port Director further explained that Complainant's duties involved the training of new Entry Specialists and that her role was no greater than any other Entry Specialist. ROI 2, at 58. The Port Director additionally explained that Complainant had been disciplined by the Agency's Discipline Review Board. Id.
The burden now shifts to Complainant to establish that the Agency's non-discriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant contends that she was ranked number one on the Certificate of Eligibles for both positions. Complainant contends that the Port Director showed favoritism towards those of his own race, promoted his church in the workplace, and retaliated against employees. Complainant also contends that the Port Director admitted asking a subordinate supervisor to identify African-American candidates on a best-qualified list. Complainant contends that the Agency presented documentation showing that one of her strong points is leadership. Complainant also contends that the the positions at issue do not require supervisory leadership experience, as the Port Director asserts.
Notwithstanding Complainant's contentions, we find that she has not established that the Agency's legitimate, non-discriminatory reasons were pretext for discrimination based on reprisal. We note that there is no dispute that no employees were selected for the positions at issue. We also note that the record reflects that both positions at issue were supervisory, and there is no dispute that Complainant was not an Import Specialist. Further, the record reflects that Complainant received the lowest average interview score from the three-person selection panel for VAN 263360; Complainant has not named any members of the panel as responsible management officials. We find no evidence of retaliatory animus here. Complainant withdrew her hearing request, so the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing and can only evaluate the facts based on the weight of the evidence presented.
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 final decision.
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
May 19, 2015
Date
1 Complainant amended her complaint on June 8, 2009.
2 There was one vacancy for VAN 234485 and two vacancies for VAN 263360.
3 Because Complainant does not specifically raise the dismissal of this claim on appeal, the Commission exercises its discretion not to address it. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 6 (Nov. 9, 1999), provides that the Commission has the discretion to only review those issues specifically raised on appeal.
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0120114024
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114024