Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Mar 19, 2015

0120121070 (E.E.O.C. Mar. 19, 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
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120121070

Hearing No. 490-2008-00220X

Agency No. HS-08-CIS-001781

DECISION
On January 5, 2012, Complainant filed an appeal from the Agency’s December 5, 2011 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND
Complainant worked as a District Adjudications Officer (DAO) at the Agency’s Sub Office in
Memphis Tennessee. On January 25, 2008, Complainant filed an EEO complaint in which she
alleged that the Field Officer Director, her second-line supervisor (S2) discriminated against
her on the basis of race (African-American) by denying her the opportunity to compete for
promotion to a Supervisory Adjudications Officer (SAO) position.

Vacancies for temporary SAO positions were posted on a nation-wide basis in Vacancy
Announcement No. FS330118, which was open from May 17 through May 31, 2005. The
second page of the announcement specified that in the event that any of the temporary SAO
positions became permanent, individuals selected through Announcement No. FS330118 would
not be required to re-compete for those permanent positions. IR 128-29. The SAO who
became Complainant’s first-line supervisor (S1) applied and was selected as the temporary
SAO in charge of the Special Task Unit, to which Complainant was also assigned. IR 94.

0120121070

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In September 2007, the Special Task Unit was disbanded. Complainant was transferred to the
Naturalization Unit. In October 2007, the supervisor of the Naturalization Unit left, leaving a
permanent SAO vacancy. Effective October 14, 2007, in accordance with the policy set forth
in Vacancy Announcement No. FS330118, S2 appointed S1 to be the permanent supervisor of
the Naturalization Unit. IR 103, 150-52. Complainant became aware of that decision in
November 2007 and believed that S2’s action deprived her of the opportunity to compete for
the SAO position. IR 94-95.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. However, the AJ
assigned to the case issued a decision on October 28, 2011, without holding a hearing. 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.

ANALYSIS AND FINDINGS
The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for those
decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Consequently, in order to warrant a hearing on her disparate treatment claim,
Complainant would have to present enough evidence to raise a genuine issue of material fact as
to whether S2 was motivated by unlawful considerations of her race when she made the
decision to convert the SAO to the permanent position. See 29 C.F.R. § 1614.109(g); Reeves
v. Sanderson Plumbing Products, Inc.

, 530 U.S. 133, 143 (2000).
There are no indications that S2 deviated in any way from the Agency’s established merit
promotion policies in converting S1 to a permanent SAO position. See Hovey v. Department
of Housing & Urban Development, EEOC Appeal No. 01973965, (Aug. 31, 2000). S2’s
affidavit testimony has been corroborated by Vacancy Announcement No. FS330118 and by
the SF-50 documenting S1’s appointment to the permanent SAO vacancy. While Complainant
expressed her belief that S2’s decision was discriminatory, she herself acknowledged that she
could not provide sworn statements from other witnesses or documents that contradict S2’s
explanation for appointing S1 to the SAO position or call S2’s veracity into question. IR 97.
The Commission has long held that unsupported assertions by a Complainant are not sufficient
evidence of discriminatory motivation. Porter v. Department of the Navy

, EEOC Petition No.
03800087 (January 14, 1981). We therefore find, as did the AJ, that Complainant failed to
raise a genuine issue of material fact as to the existence of discrimination with respect to S2’s
decision to convert S1 to a permanent SAO position.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.
0120121070

3

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.

0120121070

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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
March 19, 2015