0120130670
02-25-2015
Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.
Appeal No. 0120130670
Hearing No. 570-2011-00905X
Agency No. HS-USSS-00769-2011
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 13, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On March 28, 2011, Complainant, a job applicant for employment with the Agency's Uniformed Division, filed a formal EEO complaint claiming the Agency discriminated against him on the bases of race (African-American), sex (male), religion (Christian), color (black), and age (over 40) when:
on February 22, 2011, he received a letter from the Human Resources Specialist, Personnel Division, Office of Human Resources and Training, informing him that he was not selected to continue in the application process for a Uniformed Division Officer position.
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 October 22, 2012, the AJ issued a 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. All applicants for the Uniformed Division positions undergo an extensive application process, consisting of, among other steps: the Police Officer Selection Test, an initial interview, a panel interview, a polygraph examination, a physical examination, a background investigation, and review by a hiring panel. After applying for the Uniformed Division Officer position, Complainant had his initial interview on May 23, 2007. During the initial interview, Complainant disclosed that he had previously been rejected for employment with the Agency "due to bad credit."
Further, the AJ noted that on June 24, 2008, Complainant passed the physical examination requirement for the subject position. On February 19, 2009, Complainant was given a polygraph examination. After taking the polygraph examination, Complainant did not hear anything from the Agency. Therefore, he contacted both the local field and the Washington D.C. offices every three months to verify his status. Subsequently, Complainant was notified that he failed the polygraph examination portion of the application process.
The AJ noted that on February 22, 2011, Complainant received a letter from the Human Resources Specialist dated February 16, 2011, notifying him that he was not selected to continue in the application process and that the decision to not hire him was not a negative reflection of his qualifications. The February 16, 2011 letter also stated that many qualified applicants were not selected simply because the number of qualified applicants exceeded the number of available vacancies.
The AJ noted that in her affidavit, the Human Resources Specialist (Specialist) stated that an applicant must successfully complete all phases of the hiring process to be considered for the subject position. Specifically, the Specialist stated an applicant "must successfully complete each phase to continue in the application process; otherwise, the applicant will not receive further consideration." The Specialist made reference to attached policies, which were identified as RPS-05, Processing of Applicants by Field office; and, PER-04(05), Entry-Level Recruitment and Section - Uniformed Division Officers. The Specialist stated that Complainant met the minimum qualifications for the subject position: having a valid driver's license, high school diploma, GED, United States citizenship, 20/60 correctable vision, and a fully completed resume package. The Specialist stated that Complainant also received a passing score on the Police Officer Selection Test and the initial interview.
The Specialist stated, however, Complainant did not pass the polygraph examination apparently, at least in part, because of information concerning his 2007 income tax return. As a result, Complainant did not continue in the hiring process because he failed to pass the polygraph portion of the process. Further, the Specialist stated that she sent Complainant a non-selection letter dated February 16, 2011, on behalf of the Deputy Chief of the Special Agent and Uniformed Division Support Branch.
Moreover, the AJ noted that Complainant "blatantly" refused to respond to the Agency's discovery requests after being ordered to do so. The AJ also noted that Complainant also failed to respond to the Agency's Motion for a Summary Judgment. The AJ found that, as a result, many of the relevant facts concerning the non-selection were gleaned from the investigative report and, in particular, Complainant's affidavit therein. In his affidavit, Complainant alleged that he was informed that he failed the portion of the polygraph examination that addresses illegal drugs and serious crimes. Complainant stated that he had, "not failed [a] drug test or been convicted of any serious crimes since [he had] been active in the application process."
Based on these facts, the AJ found no discrimination. The AJ concluded that even if Complainant established a prima facie case of race, sex, religion, and color discrimination, the AJ articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to prove were a pretext for discrimination.1
The Agency fully implemented the AJ's decision in its final order. 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.
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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant has not provided any persuasive arguments regarding the propriety of the AJ's finding of no discrimination. We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. We note that Complainant did not present evidence that any of the Agency's actions were motivated by discriminatory animus toward Complainant's race, sex, religion, and color. We discern no basis to disturb the AJ's decision
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.
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
February 25, 2015
__________________
Date
1 The record reflects that in her decision, the AJ dismissed the basis of age on the grounds that Complainant was not yet 40 years old, and was therefore not entitled to the protections of the ADEA. Therefore, the AJ only addressed the other bases in the instant case.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120130670
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130670
7
0120130670