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

Equal Employment Opportunity Commission

Mar 9, 2015

0120132858 (E.E.O.C. Mar. 9, 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
(Customs and Border Protection),
Agency.

Appeal No. 0120132858

Hearing No. 520-2010-00112X

Agency No. HSCBP007502009

DECISION
On July 29, 2013, Complainant filed an appeal from the Agency’s July 19, 2013, final order
concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Customs and Border Protection (CBP) Officer, GS-1895-12, at the Agency’s Newark Liberty
International Airport, in Newark, New Jersey. On November 24, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against him on the basis of age (52)
when:

1. he was not selected for the temporary position of Supervisory CBP Officer,
advertised under Vacancy Announcement Number 138722; and

2. he was not selected for the permanent position of Supervisory CBP Officer,
advertised under Vacancy Announcement Number MHCMP-I95683-KD.

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
0120132858

2
Administrative Judge (AJ). Complainant timely requested a hearing, and the AJ held a hearing
and issued a decision on June 21, 2013. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
age discrimination. From that order, Complainant brings the instant appeal.

STANDARD OF REVIEW
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

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). He must generally 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). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy

, EEOC Request No, 05950351 (Dec. 14,
1995).
In this case, the Agency explains that Complainant was not selected for the two positions in
question because he was not as well qualified as the applicant who was selected. This is a
legitimate, nondiscriminatory reason for the Agency’s actions.

With respect to pretext, in a non-selection case, a complainant may show that an employer's
reason for the nonselection was pretext for discrimination by demonstrating that his
qualifications were “plainly superior” to those of the selectee. Wasser v. Dept. of Labor,
EEOC Request No. 05940058 (Nov. 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th
Cir. 1981). Here, the AJ concluded that Complainant had not shown that his qualifications for
the position were superior to those of the selectee. With respect to both the temporary and
permanent positions, the evidence showed that the selectee was ranked higher in experience
than Complainant, achieved a higher interview score than Complainant and had greater
0120132858

3
educational achievement than Complainant. Report of Investigation at 54-55. We conclude that
the AJ’s finding that Complainant failed to prove pretext is supported by substantial evidence.

Complainant also argues that he was not selected because institutional favoritism interfered
with the selection process. Trial Transcript at 132. However, employment decisions based on
friendship, favoritism or preselection are not prohibited so long as they are not premised on a
prohibited basis. See Goostree v. Tennessee

, 796 F.2d 854, 861 (6th Cir. 1986).

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

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).
0120132858

4
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
March 9, 2015