0120152347
11-28-2017
Mario K,1 Complainant, v. Elaine C. Duke, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mario K,1
Complainant,
v.
Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120152347
Hearing No. 520-2010-00390X
Agency No. HS-09-ICE-0432009
DECISION
On July 6, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's June 4, 2015, final order 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accounting Technician, GS-7, at the Agency's Office of Chief Financial Officer facility in Burlington, Vermont.
On October 16, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (61) when:
1. On August 2, 2009, Complainant was not selected for the position of Supervisory Financial Analyst, GS-0501-12, Finance Center, Burlington, Vermont as advertised under vacancy identification numbers 273866 (for external candidates) and 273871 (internal candidates only);
2. On September 3, 2009, Complainant was not selected for the position of Financial Analyst, GS-0501-9, Finance Center, Burlington, Vermont as advertised under vacancy identification number 264689 and 264961 (internal and external postings); and
3. On October 1, 2009, Complainant was not selected for the position of Management Information Analyst, GS-0301-11/12, Finance Center, Burlington, Vermont as advertised under vacancy identification number 272949.
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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency's motion for summary judgment and, over Complainant's objections, issued a decision without a hearing on May 7, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed asserting that the AJ erred in issuing a decision without a hearing. He argued that there were material facts in dispute and credibility determinations which required a hearing to resolve. Therefore, Complainant requested that the Commission reverse the AJ's decision and remand the matter to the AJ for a hearing.
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, issuing a decision without holding a hearing is not appropriate.
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Here, Complainant has not, either at the hearing stage or on appeal, pointed to any particular evidence in the investigative file or other evidence of record that indicates such a dispute.
Rather, a review of Complainant's arguments show that he is confused about the facts, not that material facts are in dispute. For position 1, he argues that the Agency failed to explain why he was not among the top candidates referred for further consideration despite his rating score of 99. However, the record establishes this issue was rendered irrelevant because Complainant only applied under the external announcement (273866), and no selection was made from the external list of candidates. Rather, a candidate from the internal-only list (273871), for which Complainant did not apply, was selected.2
With regard to position 2, Complainant achieved a score of 100, and applied for the position under both the external candidate announcement (264691) and the internal-only announcement (264689). The candidate who was selected from the internal list also received a score of 100. She was selected after the initial selectee, who had a score of 105, declined the position.
Finally, as for position 3, Complainant disputes why he was not selected for the position which was advertised at both the GS-11 and GS-12 levels. Complainant received a rating score of 97 for both grade levels of this position. The record shows he was interviewed along with several other applicants, but was not selected. Five other candidates received equal or better ratings than Complainant for the GS-11 position and was rated fourth for the GS-12 position.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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 consideration 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). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Here, the responsible management officials have articulated legitimate, nondiscriminatory reasons for the disputed actions. Specifically, as to claim (1), Complainant was not listed on the external certificate for consideration because he was rated lower than the three candidates who forwarded to the selecting official for the position. Moreover, the selection was ultimately made from the internal-only certificate, for which Complainant did not apply. As for claim (2), Agency management witnesses stated that although Complainant and the selectee both had rating scores of 100, the selectee was chosen because she was judged better qualified because she had already been performing the duties of the position, albeit at a different grade. Finally, as to position 3, Complainant was interviewed for the position but the Agency officials who conducted the interviews did not select Complainant noting that his software experience was not current and that his skills set was not the best qualified for the position.
The Commission will not second-guess an Agency's personnel decision unless there is evidence of a discriminatory motivation on the part of the officials responsible for making the decision. Texas Dep't of Comty Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to prevail on his disparate treatment claim, Complainant would have to prove, by a preponderance of the evidence, that the panelists were motivated by unlawful considerations of his age, disability or reprisal when they did not recommend him to the selecting official. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000).
Complainant can prove the existence of a discriminatory motivation by presenting evidence tending to show that the reasons articulated by the panelists for not recommending him were pretext, i.e., not the real reason but rather a cover for discrimination. St. Mary's Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied EEOC Request No. 0520080211 (May 30, 2008).
In non-selection cases such as the one now before us, Complainant could demonstrate pretext by showing that his qualifications for the position were plainly superior to those of the Selectee. Hung P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). Other indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015).
Complainant should bear in mind, however, that agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120141478 (Jul. 31, 2015). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Complainant v. Dep't of Justice, EEOC Appeal No. 0120131151 (Feb. 25, 2015). They may even preselect a candidate as long as the pre-selection is not premised upon a prohibited basis. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132858 (Mar. 9, 2015).
Based on our review, the AJ correctly concluded that Complainant failed to provide evidence to establish that the Agency's reasons were pretext. Therefore, we determine that the AJ's properly held that Complainant failed to establish that the Agency's actions constituted discrimination based on his sex and/or age.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision implementing the AJ's decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 Complainant's 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
November 28, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In addition, management witnesses explained that Complainant's references to the internal promotion plan for external candidate selections was misguided as these positions were filled through delegated examining authority granted by the Office of Personnel Management, where the internal promotion plan did not apply. The Human Resources specialist also explained that on an external candidate register, selection can be made only from the highest three ranked candidates. With a score of 99, Complainant was not among the top three and, therefore, was not on the certificate.
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