U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donald B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency. Appeal No. 2022001943 Hearing Nos. 451-2021-00009X; 451-2014-00182X Agency No. HS-CIS-02164-2013 DECISION 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 February 2, 2022 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. 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 an Immigration Services Officer I (ISO I), GS-1801-9, at the Agency’s Field Office in El Paso, Texas. On December 23, 2013, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), age (43), and disability2 when: on August 29, 2013, he was notified that he was not selected for the position of Immigration Services 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 Complainant subsequently withdrew disability as a basis of discrimination. 2022001943 2 Officer II (ISO II), GS-1801-11/12, advertised under Vacancy Announcement No. CIS-902374- ELP. Complainant applied for promotion to the ISO II position, which had been advertised under Vacancy Announcement No. CIS-902374-ELP. The selecting official for the position at issue was the Field Office Director, his third level supervisor (S3). At the time of his application, Complainant had worked as an ISO I for a year and six months. The resume he submitted did not include his ISO I experience. Out of the 19 best qualified candidates for the position, Complainant was one of the six candidates who were referred for further consideration. Complainant was interviewed by a three-person interview panel consisting of S3, the Section Manager (SM), and the Supervisory Immigration Services Officer (SISO) The interview consisted of several questions and a timed written document. During the interview, Complainant made reference to his military background, his training, and his education. Complainant holds a Bachelor’s degree in management and healthcare, and he has some college credit hours towards a Master’s Degree. Complainant stated that, after the interview, he was praised on his interview and told that he was a top candidate for the position. The undisputed record showed that Complainant had been ranked third of the six candidates interviewed. The eventual selectee was the top-rated candidate. S3 stated that he believed the selectee was the best qualified and she was selected based on her education, her writing sample, and her interview performance. Complainant claimed that his qualifications were demonstrably superior to the selectee’s qualifications. Complainant also stated that he had heard that the selectee would be selected because she had previously work for SM. Complainant stated that, on July 29, 2013, he was called in to the S3’s office and was informed that he was not selected for the ISO II position. When Complainant asked S3 if he had any suggestions on how he could do better or why he was not given the promotion, S3 told Complainant that Complainant’s resume needed updating.3 Complainant also stated that during the conversation with S3, “another reference was made to Complainant’s education.” Complainant stated that he informed the Director his degree was attained as a veteran through the traditional classroom environment at Fort Bliss in Texas and not “online.” Complainant also acknowledged that he did not know the selectee’s credentials. 3 Complainant acknowledged that he submitted the same resume he used when he first applied for his current ISO I position, but the resume he submitted for the ISO II job did not include his experience in his current ISO I position. Complainant stated that he had offered an updated resume to the interview panel, but the interview panel denied his request to submit an updated resume. 2022001943 3 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 Administrative Judge (AJ). Complainant timely requested a hearing.4 The AJ initially assigned to the matter (AJ1) issued a Notice of Proposed Summary Judgment. The case was reassigned to a new AJ (AJ2) following AJ1’s retirement. AJ2 issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order adopting AJ2’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that Complainant’s qualifications were demonstrably superior to the qualifications of the selectee. Complainant asserts that there was a genuine dispute of material fact as to whether the selectee possessed the experience and knowledge required for the position at issue; whether the interview questions were geared to the position; and whether Complainant’s qualifications had been properly weighted. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. 4 On July 21, 2017, the AJ initially assigned to the matter (AJ1) issued an Agreed Order Dismissing Hearing Request Without Prejudice, because Complainant’s representative had indicated that she would be unavailable for various periods. AJ1 gave Complainant until October 4, 2017, to request reinstatement of the hearing request. Complainant timely requested reinstatement and the case was eventually reinstated but docketed under EEOC Hearing No. 451- 2021-0009X. 2022001943 4 Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Disparate Treatment 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 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency articulated legitimate non-discriminatory reasons for its actions. S3 believed that the selectee was the most qualified candidate based on such factors as her resume, writing sample, and interview performance. More specifically, S3 affirmed that the selectee had been the valedictorian of her high school class and had received a straight “A” average in college. Further, the selectee had received the Assistant Commissioner’s Award for Excellence in Education as a Customs and Border Patrol Officer and had a reputation for being courteous and professional while working at the El Paso Field Office. S3 added that the selectee’s writing sample was great while Complainant’s was average. SM confirmed that the selectee’s writing sample was concise, grammatically correct, and demonstrated superior analytical thinking. By contrast, Complainant’s writing sample showed little analysis or substance and contained errors. SM added that Complainant’s resume appeared to paraphrase the qualifications outlined in the vacancy announcement rather than list his actual experience. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). One way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his non- selection claim. 2022001943 5 Construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant failed to show that his qualifications for the position at issue were plainly superior to those of the selectee’s. In this case, the selectee had attributes that justified her selection, and the selection officials affirmed that they believed the selectee was better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Commission finds no 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 animus. Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. CONCLUSION Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination as alleged. Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2022001943 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022001943 7 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 February 16, 2023 Date
