01A11158
09-04-2001
Hsueh Wu Lin, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Hsueh Wu Lin v. Department of Justice
01A11158
September 4, 2001
.
Hsueh Wu Lin,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A11158
Agency Nos. I-98-H021 / I-99-H004 / I-99-HO54 / I-99-HO61
DECISION
Hsueh Wu Lin (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his equal employment opportunity (EEO)
complaints of unlawful 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
In a complaint filed on May 29, 1998 (complaint 1) (Agency No. I-98-HO21),
complainant alleged that he was discriminated against on the bases of race
(Asian) and national origin (Chinese-Fukienses) when:
on February 24, 1998, he was not selected for the position of Immigration
Officer, GS-1801-11/12, Bangkok, Thailand, under Vacancy Announcement
Number 97-46-22016;
In a complaint filed on November 24, 1998 (complaint 2) (Agency
No. I-99-H004), complainant alleged that he was discriminated against
on the bases of race (Asian), national origin (Chinese- Fukienses)
and reprisal (prior EEO activity) when:
on August 10, 1998, he became aware that he was not selected for a
60-day detail assignment to Operation Stagger in Bangkok, Thailand;
on August 10, 1998, he became aware that he was not selected for the
position of Assistant Officer in Charge, GS-1801-13, Beijing, China,
advertised under Vacancy Announcement Number 98-06-22006;
In a complaint filed on February 9, 1999 (complaint 3) (Agency
No. I-99-H054), complainant alleged that he was discriminated against
on the bases of race (Asian), national origin (Chinese- Fukienses)
and reprisal (prior EEO activity) when:
on October 29, 1998, he was not selected for the position of Immigration
Officer,
GS-1801-11/12, Bangkok, Thailand, under Vacancy Announcement Number
98-21-22017;
In a complaint filed on July 12, 1999 (complaint 4) (Agency
No. I-99-HO61), complainant alleged that he was discriminated against
on the bases of race (Asian), national origin (Chinese- Fukienses)
and reprisal (prior EEO activity) when:
on April 20, 199, he was not selected for the position of Assistant
Officer in Charge, GS-1801-13, Guangzhou, China, under Vacancy
Announcement Number DEPT 98-37-22006.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Criminal Investigator, GS-1811-12, at the Immigration
and Naturalization Service (INS), Hemisphere Center, Routes 1 and 9,
Newark, New Jersey facility.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed formal complaints on May 29, 1998
(Complaint 1), November 24, 1998 (Complaint 2), February 9, 1999
(Complaint 3), and July 12, 1999 (Complaint 4). These complaints
were investigated separately. At the conclusion of the investigations,
complainant received a copy of the investigative reports and requested
a hearing before an EEOC Administrative Judge (AJ). On June 9, 2000,
the AJ consolidated the above cases pursuant to 29 C.F.R. � 1614.606. The
AJ issued a decision without a hearing, finding no discrimination.
The AJ concluded that assuming arguendo, that complainant met his
burden of establishing a prima facie case of discrimination, the agency
articulated nondiscriminatory reasons for its actions. Specifically, the
AJ found that complainant failed to rebut any of the agency's articulated
reasons for its actions or offer any evidence establishing that these
articulations were a pretext for discrimination. The AJ also concluded
that complainant failed to offer sufficient evidence to support that
he was more qualified than the selectees.
The AJ found that regarding the Immigration Officer position, Vacancy
Announcement Number 97-46-22016, complainant was not considered for the
position because he failed to submit a Standard Form SF-171, a resume,
an OF-612 or some other comparable format. The AJ found that there were
28 applicants, five of whom, including complainant, were not considered.
The AJ also found that complainant was the only applicant who failed to
submit adequate documentation.
Regarding complainant's nonselection for the 60-day detail assignment,
the AJ found that complainant was not considered for the detail because
his request for consideration was untimely and was received after the
closing date (July 2, 1998) and after all of the nominees names had
been sent forward to Bangkok for selection. Regarding complainant's
nonselection for the position of Assistant Officer in Charge, Vacancy
Announcement Number 98-06-22006, the AJ found that the selectee was
referred as a noncompetitive candidate since he was already a GS-13,
while complainant was referred as competitive candidate. The record
shows that, after completion of the rating and raking process, complainant
ranked second when compared with the other competitive candidates on the
best qualified list. The AJ also found that the selectee was chosen
because of his experience in the international arena, inspections and
adjudications background, his training and law enforcement experience
with the Border Patrol and his military experience. The AJ further
found that complainant's qualifications were not so plainly superior as
to require a finding of pretext.
The AJ concluded that regarding the position of Immigration Officer,
Vacancy Announcement Number 98-21-22017, complainant was not among
the top three candidates recommended by the recommending official.
The AJ found that candidates with adjudication experience were sorely
needed in Bangkok because several experienced staff had left, leaving
a void. The AJ also found that the two selectees, both had adjudication
experience, as well as other experience that made them valuable to the
Bangkok office. Furthermore, selectee 1 had knowledge of applications,
forms, and procedures and selectee 2 could speak fluent Thai and Lao.
The AJ found that complainant had extensive enforcement experience and
some inspections experience, but he had no significant adjudication
(examinations) experience and therefore was not among the top three
candidates recommended for selection.
The AJ further concluded that regarding the Assistant Officer position,
Vacancy Announcement Number DEPT 98-37-22006, the agency needed a
candidate with experience in �fraud and intelligence� areas. The AJ
found that the selectee had a total of more than 20 years experience,
including experience in both of those areas. The AJ found that the
selectee had extensive experience working with fraudulent documents as
well as experience in providing training on fraudulent documents, and
the selectee had experience working on overseas details, including one
in Bangkok. The AJ concluded that complainant had enforcement and fraud
experience, but his intelligence experience was more limited than that
of the selectee, who also had 10 years longer experience with the agency.
The agency's final action adopted the recommended decision of the AJ.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency's reasons for its actions
are pretext for discrimination. Specifically, complainant asserts that
regarding the Immigration Officer position, Vacancy Announcement Number
97-46-22016, the agency alleged that a Form G-604 was not submitted
although the telex announcement for the position did not state that such
a form needed to be submitted.
Complainant asserts that his application for a 60-day detail was not
late. Complainant contends that he submitted the application on July 2,
1998, on a timely basis. Complainant asserts that the agency lost the
application until November 5, 1998, and therefore failed to forward the
application on a timely basis. Complainant contends that the agency was
clearly responsible for the delay.
Complainant also alleges regarding his nonselection for the position of
Immigration Officer, Vacancy Announcement Number 98-21-22017, that the
agency selected a GS-9 employee without any investigative experience.
Complainant asserts that the selectee was a female INS employee without
any language facility. Complainant asserts that he was more qualified
than the selectee because he possessed enforcement experience (which
is in large part the work of the Immigration Officer) and adjudication
experience. Complainant contends that the selectee did not possess
enforcement experience.
Complainant further asserts that regarding the position of Assistant
Officer, he was more qualified than the selectee because he is fluent
in Chinese, speaking and writing in Mandarin, Cantonese and Fukienses
dialects, and the selectee was a white male with no language facility.
ANALYSIS AND FINDINGS
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 judgement a court does not sit as a
fact finder. Id. The evidence of the non-moving party must be believed
at the summary judgement stage and all justifiable inferences must be
drawn in the non-moving party's favor. Id. A disputed issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celtotex v. Carett, 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 judgement is not appropriate. In the
context of an administrative proceeding under Title VII, an AJ may
only properly consider summary judgement after there has been adequate
opportunity for development of the record.
In general, claims alleging disparate treatment are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d
1003 (1st Cir. 1979)(requiring a showing that age was a determinative
factor, in the sense that "but for" age, complainant would not have
been subject to the adverse action at issue). A complainant must
first 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 reason was a factor in the
adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
Complainant may establish a prima facie case of discrimination in
the nonselection context by showing that: (1) he is a member of a
protected class; (2) he was qualified for the position; (3) he was not
selected for the position; and (4) he was accorded treatment different
from that given to persons otherwise similarly situated who are not
members of her protected group. Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998); Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002
(September 18, 1996). Complainant may also set forth evidence of acts
from which, if otherwise unexplained, an inference of discrimination
can be drawn. Furnco, 438 U.S. at 576.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. The AJ found that assuming
arguendo that complainant met his burden of establishing a prima facie
case of discrimination, the agency articulated nondiscriminatory reasons
for its actions. The AJ found that complainant failed to rebut any of
the agency's articulated reasons for its actions or offer any evidence
establishing that these articulations were a pretext for discrimination.
We note that the agency has articulated a legitimate, nondiscriminatory
reason for not selecting complainant in any of the five positions.
Specifically, the record shows that complainant was not selected in the
position of Immigration Officer, because he failed to submit his resume
or other written format; an OF-612 or an SF-17. The Vacancy Announcement
Number 97-46-22016, clearly indicates that the applicants had to submit
that information. Complainant failed to dispute the agency's claim
that he failed to submit this information, instead he contends that
the telegraphic message that summarized the vacancy announcement did
not indicate this requirement. However, the record shows that the telex
�strongly recommended that applicant obtain a copy of the complete vacancy
announcement from the appropriate personnel office before applying for
a specific vacancy.�
The record also shows that complainant was not eligible for a 60-day
detail, because he applied in an untimely manner. The record shows that
on July 2, 1998, the responsible management official informed complainant
that it was necessary for him to receive supervisory approval through
his District Director to be eligible for consideration of this detail.
The management official also informed complainant that since he did not
receive his approved application for the Stagger Step detail, he was
not able to submit complainant's application to the Bangkok office for
consideration. Complainant's request for a detail was postmarked July 23,
1998, noting that the closing date was July 2, 1998. Complainant failed
to rebut that evidence and failed to show that his application was timely.
The record reflects that regarding the Assistant Officer in Charge
position, Vacancy Announcement Number 98-06-22006, the selectee was
qualified for the position. The record shows that he was selected
because of his experience in the international arena, inspectional and
adjudications background, his training and law enforcement experience with
the Border Patrol and his military experience. Complainant contends that
he believes his overall background and qualifications made him the best
qualified candidate for selection to the position. However, he failed
to dispute the agency's allegation regarding the best qualifications
for the position.
We note that regarding the Immigration Officer position, Vacancy
Announcement Number 98-21-22017, the record reveals that the Agency did
not select complainant because, although he has extensive enforcement
experience, and some inspections experience, he has no significant
adjudication (examinations) experience. The vacancy announcement
indicated that the specialized experience �must be experience in the
performance of either immigration inspections, immigration examinations
or in the enforcement phases of the U.S. immigration and nationality
laws, regulations and procedures.� Therefore, the Agency alleged that
the vacancy announcement is generic for all Immigration positions and
at the time the positions were filled, the most pressing need was for
examinations experience.
Complainant asserts that he is more qualified than those selected,
because neither of the selectees can match his extensive experience in
enforcement and investigations, and complainant believes neither has
his inspections experience. The record reveals that a candidate who
has experience in at least one or more of these areas meets the basic
qualifications for the position, but is not necessarily the best person
for the job. Selectee 1 stood out because of her experience as both the
Information Officer and Administrative Aide to the District Director in
Rome, as well as a District Adjudications Officer in Atlanta, Georgia.
Selectee 1's knowledge of applications, forms and procedures from her
work in Rome was valuable because Immigration Officers in Bangkok must
act as resource for the relatively inexperienced staff working at the
information window. The record shows that Selectee 2 stood out because
of his adjudications experience as an Asylum Officer, his supervisory
experience and his twelve years experience with the Joint Voluntary Agency
(JVA). Immigration Officers in Bangkok visit Vietnam and North Thailand
to interview and process refugees, and that is what Selectee 2 had done
for the JVA. Complainant failed to dispute that at the time of the
selections the most pressing need of the facility was for individuals
like S1 and S2, who had examinations experience.
We further note that regarding the Assistant Officer in Charge position,
the record reveals that the selectee had 26 years of experience with
INS, including experience in fraud and intelligence. The agency's
Guangzhou office needed someone with experience in both of those areas.
According to the selecting official, complainant has enforcement and
fraud experience, but his intelligence experience is more limited than
the selectee's. Complainant asserts that he was more qualified than
the selectee because he is fluent in Chinese, speaking and writing in
Mandarin, Cantonese and Fukienses dialects. The selecting official gave
more weight to selectee's extensive fraud and intelligence experience
which were pressing needs for the office. Complainant did not dispute the
selecting official's testimony that the Guangzhou office had a pressing
need for an individual with experience in fraud and intelligence.
We conclude that complainant failed to raise a genuine dispute of material
fact as to the agency's articulated explanations for its actions.
We discern no basis to disturb the AJ's decision. Therefore, after a
careful review of the record, including complainant's contentions on
appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
September 4, 2001
__________________
Date