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

Equal Employment Opportunity Commission

Sep 2, 2015

01-2013-3291-0500 (E.E.O.C. Sep. 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
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120133291

Hearing No. 570-2011-00638X

Agency Nos. HS-ICE-00264-2011; HS-ICE-00633-2011

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 29, 2013 final Agency decision (FAD) 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. The Commission’s
review is de novo. For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Branch
Chief/Supervisory Special Agent in the Agency’s National Emergency Division facility in
Washington, D.C. On March 7, 2011, Complainant filed a formal complaint (Agency No.
HS-ICE-00264-11) alleging that the Agency discriminated against him on the bases of sex
(male) and in reprisal for prior protected EEO activity when:

1. On November 16, 2010, he requested an office, and to date, he has not received an
office;

2. On February 17, 2011, [his supervisor (S1)], National Incident Response Unit
(NIRU) canceled his attendance at the Advanced Supervisory Leadership Training
program scheduled for March 7, 2011, in Dallas, Texas; and

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3. On February 19, 2011, S1 did not allow Complainant to apply for the Harvard
Kennedy Senior Executive Fellows Program, Harvard University.1

On March 30, 2011, Complainant filed a second EEO complaint [Agency No. HS-ICE-00633-
2011] alleging that the Agency discriminated against him on the basis of race (Caucasian)
when:

4. On December 30, 2010, Complainant became aware that he was not selected for the
position of Supervisory Criminal Investigator (Assistant Special Agent in Charge),
GS- 1811-15, Homeland Security Investigations, Las Vegas, Nevada as advertised
under Vacancy Announcement DAL-INV-391828-MP-JJT.

On April 7, 2011, the Agency consolidated the two complaints. At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation
(ROI) and notice of his right to request a hearing before an Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew request. Consequently, the Agency issued a FAD pursuant to 29
C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), S1 stated that
Complainant’s request for an office could not be approved at that time due to space limitations
in the NIRU. S1 explained that NIRU was relocated to a temporary space and had been
allotted only two offices and multiple cubicles. S1 added that Complainant was aware of the
lack of office space when he joined NIRU in October 2009. S1 noted that Complainant was
initially sitting in a vacant cubicle, but he is currently in an office.

With respect to claim (2), S1 stated that she did not approve Complainant for the March 7,
2011 class because NIRU was working on a very critical project and several upcoming national
exercises that Complainant was responsible for coordinating. S1 added that, given
Complainant’s roles and responsibilities in these time-sensitive tasks, NIRU had a legitimate
need for Complainant’s presence during this time, and no other supervisor could assume these
responsibilities. S1 noted that Complainant was approved for the training at issue in June
2011.

As to claim (3), S1 explained that she denied Complainant’s request because the Agency was
under a continuing resolution and it was likely that the Harvard Kennedy Senior Executive
Fellows Program would not take place due to budget constraints. S1 stated that she also had to
consider NIRU’s limited staff and commitment to completing critical tasks by previously

1 The Agency dismissed one additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. Complainant did not challenge the dismissal of this claim on appeal;
therefore, the Commission will not address it in this decision.
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scheduled deadlines, and Complainant’s being away from the office for 30 days, would have
hindered NIRU’s ability to execute these time-sensitive tasks and created an unreasonable
increase in the workload for the rest of the team. S1 noted that she informed Complainant that
he could apply when the program came around again.

Finally, with respect to claim (4), the Recommending Official (RO) stated that he
recommended the Selectee because he was the best qualified candidate for the position. RO
affirmed that the Selectee’s investigative and supervisory experience made him more qualified
than Complainant to manage the specific needs of the Las Vegas Office. Further, the Selectee
possessed experience as Special Agent with the Air Force Office of Special Investigations;
U.S. Customs Special Agent in San Ysidro, California; Special Agent with the Florida
Department of Law Enforcement; and Special Agent with U.S. Customs Internal Affairs. RO
stated that the Selectee also possessed about nine years of supervisory experience as Group
Supervisor, Section/Unit Chief and Program Manager, while Complainant only possessed
experience as Special Agent in Charge in New York, and limited supervisory experience. RO
confirmed that he forwarded his recommendation on to the Interim Selection Evaluation Panel
for an independent review, and the panel forwarded it to SO for selection. SO approved RO’s
recommendation and the Selectee was selected for the SCI position.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he attempted to amend his complaint to include an
additional claim of discrimination, but received no response from the Agency. Further,
Complainant claims that the AJ made several procedural errors and failed to rule on all of his
motions. Complainant argues that the FAD ignored his arguments that the Agency’s reasons
for its actions were pretext for discrimination and reprisal. Additionally, Complainant claims
that the FAD failed to fully take into account the circumstances and false explanations for
cancelling his training and denial of the opportunity to apply to the Harvard program.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Procedural Errors and AJ’s Handling of the Case

Complainant argues that the Agency failed to amend his complaint to include several additional
claims despite his request to the EEO Counselor. The record reveals that the complaint was
pending before the AJ when Complainant wished to amend the complaint to include additional
issues. The record further indicates that the AJ's July 11, 2012 Acknowledgement and Order
instructed Complainant that he may move to amend his complaint by submitting a motion as
early as possible to the AJ. There is no evidence that Complainant filed a motion to amend his
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complaint as instructed in the Order. As a result of Complainant’s failure to follow the AJ’s
Acknowledgment and Order, Complainant failed to properly amend his complaint.

In addition, Complainant claims that the AJ erred by failing to rule on several of his motions,
including motions to compel the attendance of several current and former Agency employees
and a motion for sanctions against the Agency. Because Complainant chose to withdraw from
the hearing process, the Commission declines to review on appeal the procedural rulings made
by the AJ, or outstanding hearing matters that were pending at the time of his withdrawal. See
Complainant v. U.S. Office of Pers. Mgmt., EEOC Appeal No. 0120120901 (Dec. 2, 2013);
Arvizu v. Dep’t of the Navy, EEOC Request No. 0520100598 (Dec. 17, 2010) (“The
regulations found at 29 C.F.R. Part 1614 do not provide for interlocutory appeals of AJ
decisions .... [I]f Complainant wished to challenge the ruling of the AJ, he should have
remained within the hearings process, received a decision from the AJ, and appealed to the
Commission following the Agency's issuance of a final order.”); Valdez v. U.S. Postal Serv.,
EEOC Appeal No. 01A00196 (May 11, 2000) (in light of Complainant's withdrawal of hearing
request mid-hearing, the Commission refused to consider Complainant's challenge to AJ's
rulings on discovery, hearing witnesses, and exhibits; “Complainant cannot evade the
prohibition on interlocutory appeals from AJ discovery rulings by seeking to withdraw her
hearing request in order to obtain appellate review of a FAD only for purposes of obtaining
reversal of the discovery rulings and remand for a hearing. Complainant has waived her right
to a hearing, and we now review the FADs on the merits of Complainant's claims.”).
Accordingly, the Commission will not review on appeal Complainant's challenges to rulings by
the AJ on discovery, sanctions, witnesses, or any other hearing-related matters. Nor will the
Commission review the outstanding issues the AJ had taken under advisement and not yet ruled
on at the time Complainant withdrew his hearing request

Disparate Treatment

Turning to the merits of the instant complaint, 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). Complainant must
initially 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.
13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that Complainant failed to present evidence to rebut
the Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, as to claim
(1), S1 affirmed that NIRU was relocated to a temporary space located on the sixth floor and
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allocated only two offices and multiple cubicles. ROI, at 123. Complainant was aware of the
lack of office space when he joined the team in October 2009, and was told that he would be
sitting in the cubicle vacated by the Branch Chief. Id. S1 explained that it was not a question
of ever denying Complainant an office; rather, Complainant’s request could not be met as a
result of NIRU simply not having sufficient space after being temporarily relocated. Id.
Complainant has subsequently received an office.

With respect to claim (2), S1 explained that she cancelled Complainant’s attendance at the
Supervisory Leadership Training because from August 2010 through February 2011, NIRU
was in the middle of a very critical project that involved the Office of the Assistant Secretary
and the Agency’s Continuity of Operations relocation site. ROI, at 124. In addition, NIRU
was planning for several upcoming national level exercises. Id. S1 affirmed that Complainant
was responsible for oversight of these activities and NIRU did not have another supervisory
employee who could assume these responsibilities at that time. Id. Given Complainant’s roles
and responsibilities in these time-sensitive tasks, NIRU had a legitimate and serious need for
his presence during this time, and Complainant’s absence would have made it difficult for the
NIRU team to stay on track with these critical projects. Id. S1 noted that Complainant had
been allowed to attend a total of five training courses since joining the NIRU team in October
2009, which was more than any other NIRU employee. Id.

Regarding claim (3), S1 stated that she denied Complainant’s request to attend the Harvard
Kennedy Senior Executive Fellows Program because the Agency was then under a continuing
resolution, and it was likely that the Program would not take place due to budget constraints,
as it had been cancelled in the past. ROI, at 126. Further, S1 weighed the limited staff and
critical tasks, budget constraints, and commitment to completing tasks by specified deadlines
and determined that had Complainant been accepted into the 30-day Program, it would take
him away from the office at a very critical time. Id. at 126-27. In addition, S1 pointed out to
Complainant that his Branch had sole responsibility for oversight of the Continuity of
Operations program, and that he had not taken care of several tasks associated with this
project, including obtaining a classified email address from which communications were being
sent. Id. at 127. S1 advised Complainant that he could apply again when the Harvard
Program was announced again at a later date. Id.

Finally, as to Complainant’s nonselection alleged in claim (4), RO stated that based upon the
review of all of the candidates' resumes, he believed that the Selectee was the best qualified
candidate. ROI, at 176. RO confirmed that the Selectee’s investigative and supervisory
experience made him more qualified than Complainant to manage the specific needs of the Las
Vegas office. Id. RO noted that the Selectee had over 11 years in investigative and
supervisory experience, including highly desired experience with state and local enforcement,
the southwest border experience, internal affairs, certified undercover operations, and the
management inspection unit. Id. By contrast, Complainant had significantly less investigative
experience, less than two years of supervisory experience, and no field supervisory experience.
Id. RO stated that the Selectee’s management experience and diverse law enforcement
background made him the ideal candidate for the position because of the office's remote
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location, variety of investigative responsibilities and significant morale and administrative
challenges. Id. at 190-91. As a result, RO recommended the Selectee for selection, and SO
approved the selection. Id. at 284.

As Complainant chose to withdraw his hearing request, the Commission does not have the
benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The
Commission finds no persuasive evidence that Complainant's protected classes were a factor in
any of the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. Specific to his nonselection claim, the Commission
notes that Complainant failed to provide any persuasive evidence that his qualifications were so
plainly superior to those of the Selectee that discrimination could be inferred from
his nonselection. The record also does not show that the selecting officials considered
Complainant’s protected bases with regard to the nonselection. The Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions. As
a result, the Commission finds that Complainant has not established that he was subjected to
discrimination or reprisal as alleged.

CONCLUSION

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 because the preponderance of the evidence of record does not
establish that discrimination occurred.

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
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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 (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 2, 2015
Date