Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-2149-0500 (E.E.O.C. Jul. 2, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security,
Agency.

Appeal No. 0120132149

Agency No. HS-ICE-01391-2011

DECISION
On May 4, 2013, Complainant filed an appeal from the Agency’s April 10, 2013 final decision
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.
§ 791 et seq

. Our review is de novo. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Detention and Deportation Officer (SDDO), GS-1801-13, at the Agency’s work facility in Las
Vegas. On August 5, 2011, Complainant filed an EEO complaint wherein he claimed that the
Agency discriminated against him on the bases of his national origin (Hispanic) and age (49)
when on May 10, 2011, he became aware that he that he had not been selected for the position
of Supervisory Detention and Deportation Officer (Assistant Field Office Director), GS-1801-
14, Enforcement and Removal Operations, Salt Lake City Field Office, Boise, Idaho.
Complainant subsequently amended his complaint to include the claim that he had been
subjected to reprisal under Title VII and the ADEA when on October 19, 2011, he became
aware that he had been removed from an October 24, 2011 Fugitive Alien Removal Operation
to the San Diego/Tijuana border.

At the conclusion of 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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
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The Agency determined that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. With regard to the selection at issue in claim (1), the record reveals
that Complainant was one of five individuals included on a List of Eligibles. The Agency
stated that Complainant’s Supervisor, the Field Office Director, was the selecting official.
According to the Agency, the Field Office Director based his decision on the application
packages and did not conduct interviews.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for its
selection decision. The Field Office Director explained that the selectee (Irish-American, 41
years of age) was the most qualified applicant due to his experience and qualifications.
According to the Field Office Director, the selectee had experience as the Acting Assistant
Field Office Director at the Boise and Las Vegas Offices, and that he did an outstanding job in
that capacity. The Field Office Director acknowledged that Complainant was qualified to be
promoted, but he stated that Complainant was not the most qualified.

The Agency noted that Complainant attempted to establish pretext by arguing that he was
better qualified than the selectee because he had longer service with the Agency and had held
various supervisory positions. However, the Agency determined that Complainant’s
qualifications were not so plainly superior to those of the selectee that Complainant’s
nonselection could command a finding of pretext. The Agency stated that Complainant also
contended that he was not selected because the previous Assistant Field Office Director, a
Latino, got involved in trouble, embarrassed the Field Office and was demoted. Complainant
argued that management was not going to promote another Hispanic. The Agency determined
that Complainant provided no evidence to support this contention.

With respect to the claim concerning Complainant’s removal from a Fugitive Aliens Removal
Operation, the Agency determined that it articulated legitimate, nondiscriminatory reasons for
its decision. According to the Field Office Director, he removed Complainant from this
assignment based on the policy that supervisors should only participate on escort details when
extenuating circumstances exist. The Field Office Director stated that extenuating
circumstances include, but are not limited to, high profile cases, possible media coverage, and
coordination with foreign government officials relating to the escort of a high profile case.
The Field Office Director maintained that there was no justification to have a supervisor
assigned to this operation. The Field Office Director asserted that the majority of operations
requiring an escort utilize Deportation Officers and Immigration Enforcement Agents rather
than supervisors. The Deputy Field Office Director stated that Complainant was replaced on
the relevant assignment by a non-supervisory Immigration Enforcement Agent.

Complainant claimed that his removal from the assignment was the result of his EEO activity
concerning the nonselection at issue in claim (1). The Agency rejected this argument, stating
that Complainant did not support this contention with evidence. The Agency noted that the
Deputy Field Office Director asserted that there have been four removal operations since 2009
and no supervisor participated in prior removal operations in January and May 2010. The
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Agency further stated that Complainant was assigned in February 2013, to a removal operation
to the Philippines because there were extenuating circumstances involved, and Complainant’s
supervisory experience and high level experience were needed.

CONTENTIONS ON APPEAL
On appeal, Complainant addresses his argument exclusively toward claim (1). Complainant
contends that the selection process was biased against him because management was
predisposed to choose Irish-American candidates. Complainant claims that of the five
Assistant Field Office Directors appointed in recent years, four were of Irish/Scottish ancestry
and one was African-American. Complainant states that no Hispanic has been hired for a
management position at the Las Vegas Office since a Hispanic Assistant Field Office Director
got into trouble and was transferred. In particular, Complainant attributes the bias in favor of
Irish-American candidates to the Acting Deputy Director. Complainant states that the Acting
Deputy Director includes the seal of the Emerald Society on his official government
correspondence. Complainant maintains that the Acting Deputy Director used his power and
influence to have the selecting official choose an Irish-American candidate rather than him. In
support of his position, Complainant references the statement of a retired supervisor of Irish
ancestry attesting to noticing a pattern of filling Assistant Field Office Director positions in the
Salt Lake City area of operations with persons primarily of Irish descent.

Complainant disputes the Agency’s assertion that the selectee was more qualified than him.
According to Complainant, he has thirteen years and five months of supervisory experience
and the selectee has four years and eleven months of supervisory experience. Complainant
maintains that the selectee’s supervisory experience at the GS-13 level is very limited
compared with him and unlike himself, the selectee has not served at the Headquarters level in
any permanent position. Complainant notes that he has approximately nine more years of
experience with the Agency than the selectee. Complainant points out that he has served for
six years and two months as an instructor at the academy teaching new supervisors and the
selectee has not served as an instructor. Complainant draws an inference from this difference
that his work performance was considered better than that of the selectee. Complainant argues
that other than the selecting official’s statement, there is no evidence to support the Agency’s
position that the selectee has an exemplary work performance history.

In response, the Agency asserts that what separated the selectee from Complainant is that the
selectee had previously served in the position they were competing for and had excelled in the
position while Complainant lacked that experience. The Agency notes that the selecting
official stated that experience as a manager at the Assistant Field Office Director level was
something he was looking for in addition to the knowledge, skills and abilities required for the
position. According to the Agency, the selectee had served as the Acting Field Office Director
at Boise for a number of months and in Las Vegas for two months and had done an outstanding
job in both locations. The Agency maintains that Complainant has not submitted evidence to
support his contention that management would not hire another Hispanic after a prior Hispanic
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Assistant Field Office Director had gotten in trouble and embarrassed the Salt Lake City Field
Office.

ANALYSIS AND FINDINGS
With regard to Complainant’s nonselection for the position of Supervisory Detention and
Deportation Officer (Assistant Field Office Director), we shall assume arguendo that
Complainant has set forth a prima facie case of national origin and age discrimination. The
Agency explained that its decision to choose the selectee instead was based on his experience
and qualifications. Specifically, the selectee had experience as the Acting Assistant Field
Office Director at the Boise and Las Vegas Field Offices and the Agency asserted his work
performance was outstanding at those locations. We find that the Agency articulated a
legitimate, nondiscriminatory reason for its selection decision.

Complainant attempts to establish pretext by arguing that there is a bias in favor of candidates
of Irish heritage for Assistant Field Office Director positions. Complainant also contends that
his qualifications and experience warranted his selection. Complainant points to the fact that
his experience exceeded that of the selectee in terms of approximately nine more years with the
Agency and about eight and a half more years as a supervisor. Complainant also states that he
has served for over six years as an instructor at the training academy and the selectee has not
served in that capacity.

We observe that Complainant focuses his argument concerning Irish-American bias on the
Acting Deputy Director and the alleged influence he had on the selecting official. Complainant
points to the fact that the Acting Deputy Director includes a seal of the Emerald Society on his
official government correspondence. However, the Acting Deputy Director’s evident pride in
his heritage does not constitute persuasive evidence that the Acting Deputy Director exerted
influence over the selecting official to choose the selectee because he also is of Irish-American
heritage. The recent selection of several Assistant Field Directors of Irish/Scottish heritage is
not so pronounced to establish a clear pattern of bias. We find that although Complainant was
qualified for the position at issue, he has not refuted the Agency’s explanation that the
selectee’s experience, especially his effective work as an Acting Assistant Field Director at the
location of the position at issue, was a dispositive and nondiscriminatory factor supporting the
choice of the selectee. We find that Complainant failed to establish, by a preponderance of the
evidence, that the Agency’s explanation for his nonselection was pretext intended to hide
discriminatory intent.

As for the removal of Complainant from an assignment to the Fugitive Aliens Removal
Operation to the San Diego/Tijuana border, we shall aassume arguendo that Complainant
established a prima facie case of reprisal. The Agency explained that Complainant was
removed from this assignment based on its policy that supervisors should only participate on
escort details when extenuating circumstances exist. The Field Office Director asserted that
there was no justification for having a supervisor assigned to this operation. The Field Office
Director asserted that the majority of operations requiring an escort utilize Deportation
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Officers and Immigration Enforcement Agents rather than supervisors. The Deputy Field
Office Director stated that Complainant was replaced on the relevant assignment by a non-
supervisory Immigration Enforcement Agent. We find that the Agency presented a legitimate,
nondiscriminatory reason for its decision.

Complainant claimed that his removal from the assignment was attributable to his EEO activity
concerning his nonselection. According to Complainant, his inclusion in the assignment was
justified considering it involved the escort of two individuals wanted in Mexico for murder and
rape. We find that this argument is not sufficiently persuasive to establish that Complainant’s
removal from the assignment was attributable to reprisal. The Agency stated that extenuating
circumstances warranting a supervisor’s presence on an escort included high profile cases,
media coverage, and coordination with foreign government officials relating to the escort of a
high profile case. The Agency noted that Complainant was assigned to a Fugitive Alien
Removal Operation to the Philippines on February 13, 2012, that involved an international
operation with numerous other federal agencies, Attaches, Public Affairs, and foreign
governments where a high level of expertise and supervisory experience was needed. We find
that Complainant failed to establish that the Agency’s explanation that a supervisor was not
needed for the assignment at issue was pretext intended to hide retaliatory motivation.

CONCLUSION
The Agency’s determination that no discrimination occurred 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,
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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

Date
July 2, 2015