Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionJul 17, 2014
0120122521 (E.E.O.C. Jul. 17, 2014)

0120122521

07-17-2014

Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.


Complainant,

v.

Jeh Johnson,

Secretary,

Department of Homeland Security

(Customs and Border Protection),

Agency.

Appeal No. 0120122521

Agency No. HSCBP017712011

DECISION

On May 18, 2012, Complainant filed an appeal from the Agency's April 19, 2012, final decision concerning his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.

ISSUE PRESENTED

Whether Complainant was discriminated against on the bases of race (Hispanic), color (non-White), national origin (Mexican), and age (47) when on or about July 26, 2011 he learned that he was not selected for the position of Safety and Occupational Health Manager, GS-0018-13, advertised under VAN IHC-447669-KWI-MP (69).1

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Safety Occupational Health Manager, GS-12 at the Agency's San Diego Field Office facility in San Diego, California. On May 24, 2011, as a result of his placement on the Best Qualified List (BQL), Complainant was interviewed for the Safety and Occupational Health Manager GS-0018-13 (SOHM) position, advertised under VAN IHC-447669-KWI-MP (69). The three-member interview panel consisted of: the Supervisory (S) SOHM1, S-SOHM2, and S-SOHM3. Complainant was one of 5 applicants interviewed from the BQL. The panel used a set of pre-determined questions which they asked each of the 5 interviewed candidates. After all five interviews, the panel discussed the interviewees and came to a consensus on the selectee to recommend for the position. Complainant was not selected for the position.

On October 31, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him as articulated above. 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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

Specifically, the FAD found that Complainant failed to produce any evidence demonstrating management was motivated by a discriminatory animus when it declined to select him for the SOHM position. The evidence established that management articulated a sufficient legitimate, non-discriminatory reason for not selecting Complainant for the SOHM position. The Selecting Official (SO) indicated that Complainant was not selected because he was not the most qualified interviewee for the position. The SO stated that he based his selection on the recommendation from the panel, and his independent review of the applicants' resumes. Specifically, the SO stated that the Selectee had a Bachelor's degree, and attained his Certified Safety Professional (CSP) designation from the Board of Certified Safety Professionals. The record reflects that this is a distinguished accomplishment which requires the candidate to meet education and experience standards, and pass rigorous examinations validated against the practice of hundreds of safety professionals. Complainant does not possess a college degree, nor had he attained the CSP designation, or any other professional level certification. The SO further stated that the Selectee's Bachelor's degree and CSP certification, along with his resume, interview, and recognized service in the field of safety, placed him above the other candidates, including Complainant.

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 Chapter 9, � VI.A. (November 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

Disparate Treatment

In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, Complainant must establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the Agency was a pretext for discrimination. Id. at 256. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. � 623(a)(1). When a complainant alleges that she has been disparately treated by the employing Agency as a result of unlawful age discrimination, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604,610 (1993)). 'That is, [Complainant's] age must have actually played a role in the employer's decision making process and had a determinative influence on the outcome." Id.

We assume for the purposes of this analysis, that Complainant has established a prima facie case of discrimination based on race, color, national origin, and age. We also find that the Agency articulated a satisfactory legitimate, non-discriminatory reason for not selecting Complainant for the SOHM position. An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria. In the absence of such evidence, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, at 259 (1981). Arguably each of the 5 candidates interviewed for the SOHM position were equally qualified as each was placed on a BQL list after undergoing an evaluation and referral process. Complainant offers no evidence on appeal to establish that he possessed any of the qualifications that the Selectee possessed. Therefore, we find that Complainant has failed to present persuasive evidence that establishes that the Agency's articulated reason for its action was a pretext for discrimination, and we find no basis to disturb management's decision regarding the selectee.

After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision finding that Complainant failed to establish that he was discriminated against as alleged.

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

_7/17/14_________________

Date

1 The Commission notes that the original complaint contained an additional claim (Claim 1) which was dismissed for untimely EEO Counselor contact. The Agency's dismissal of Claim 1 is not at issue on appeal; therefore, the instant appellate decision does not address whether the Agency's dismissal of Claim 1 was proper.

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0120122521

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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