0120130905
03-02-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120130905
Hearing No. 531-2012-00034X
Agency No. HS-CIS-01021-2011
DECISION
Complainant filed an appeal from the November 27, 2012 decision of an EEOC Administrative Judge (AJ), which became the Agency's final decision concerning an equal employment opportunity (EEO) complaint. Complainant alleged employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Citizenship and Immigration Services Assistant at the Agency's Baltimore, Maryland facility.
On July 5, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him on the bases of disability (hearing impairment) and age (over 40) when:
on March 31, 2011, he became aware that he was not selected for the position of Immigration Services Officer, GS-1801-9, located in the Baltimore Field Office, as advertised under Vacancy Announcement No. CIS-419317-BAL.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On November 27, 2012, the AJ issued a telephonic bench decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. The Agency posted a Vacancy Announcement for the position of Immigration Services Officer. The subject position required the following qualifications: the ability to interview applicants for immigration benefits; review documents for authenticity; research and analyze appropriate information; and interpret and apply immigration laws, policies, and procedures.
After reviewing the application packages, the Human Resources office established three "Certificate of Eligibles." Complainant qualified as a GS-9 candidate and was referred to the selecting official on the list of Level One (GS-5/7/9) eligibles.
The AJ noted that the two other lists consisted of Level Two candidates (GS-11) and Level Three (GS-12) candidates. Complainant's name was not included on either of these lists because Complainant did not have sufficient time in grade to qualify for competition at those grade levels.
A three-member panel was convened, and the panelists reviewed all of the candidates' application packages from the Level One and Level Two certificates. However, the panel only interviewed candidates on the Level Two list, because the selecting official had initially intended to hire more experienced candidates for the subject positions.
The AJ noted that the panel did not interview any of the candidates, including Complainant, on the Level One certificate. The AJ further noted that the panel intended to make all of its selections from the Level Two certificate. Consequently, following the interviews, six candidates from the Level Two certificate were offered positions, but two candidates declined the offers. The panel then concluded that it would select one candidate from the Level Two certificate who had been previously interviewed and one candidate from the Level One certificate who had not been interviewed. The record reflects that the two candidates were offered positions and accepted them.
The Field Office Director stated in his affidavit during the investigation that when he and the other panel members reviewed the Level One certificate, they picked a the female selectee, who they did not interview, based on her extensive experience. The Field Office Director stated that the panel did not interview Complainant because he "was the most junior of all the candidates as far as actual experience on the job and also had the lowest rating of all the candidates." The Field Office Director further stated "there was no comparison between [Complainant] and the Level 2 selectees. Those applicants had performed Level 2 work, were known quantities, and had outstanding ratings in their current position. When we got to the Level 1, we looked at all four of those candidates and [female selectee] had the most physical time here in terms of experience."
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of disability and age discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.
The Agency did not issue a final order adopting the AJ's finding. As a result, the AJ's decision became the Agency's final decision. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
On appeal, complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. We find that Complainant, who was represented by legal counsel,1 was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond to the motion, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
After careful review of the record, we concur with the AJ's conclusion that the responsible management officials articulated legitimate, non-discriminatory reasons for Complainant's non-selection at issue, and the Complainant did not prove, by a preponderance of the evidence, that the proffered reasons were really a pretext designed to mask discrimination.
As a final matter, we note that Complainant has indicated on appeal that he is willing to settle his complaint for the offer the Agency made during a pre-hearing conference. Such a settlement possibility is now between Complainant and the Agency. On appeal, we can only consider the correctness of the AJ's decision on the merits of Complainant's claim.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the AJ's decision which became 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
March 2, 2015
__________________
Date
1 Complainant states that he later fired his lawyers "because they lied to me and I couldn't trust them anymore...so I'm not asking to redo this case and completely start over. I just want to settle this case for '$3000 and training' which was the offer on the table at one time, made by the agency at the pre-hearing."
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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