U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark H.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2022002750 Hearing No. 510-2020-00292X Agency No. HS-ICE-02621-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 7, 2022, finding no discrimination regarding his complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mission Support Specialist, GS-9, at the Agency’s Immigration and Customs Enforcement, San Juan Field Office in San Juan, Puerto Rico. On December 13, 2018, Complainant filed his complaint alleging discrimination based on age (over 40) when on September 5, 2018, he learned that he was not selected for the position of Mission Support Specialist, Vacancy Announcement Number DAL-INV-2018-10262004-MP- RD. 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. 2022002750 2 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). 29 C.F.R. § 1614.108(f). Complainant requested a hearing. The AJ issued a Notice of Intent to Issue a Summary Judgement Decision without a hearing. The parties responded to the notice. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The record indicates that the Vacancy Announcement Number DAL-INV-2018-10262004-MP- RD was advertised in July 2018 for two Mission Support Specialist positions ranging from GS-9 to GS-11, with promotion potential to GS-12. It was opened to local Agency employees. Complainant applied for the position of GS-11 grade level. The Agency convened an interview panel consisting of four members, including Complainant’s first level supervisor (S1). After reviewing applications and resumes, the panel decided to interview all seven candidates, including Complainant. Complainant and two candidates were interviewed by three interview panelists; S1 did not participate in the interviews since they were her immediate subordinates. The panel asked the same five questions related to the position at issue, i.e., concerning decision making; problem-solving abilities; attention to detail and organizing and maintaining a system of records; prioritizing, time management, and planning; and contribution to the office. After the interviews, the panel scored and ranked each candidate’s performance. The seven candidates received the total interview scores of 64, 61, 61, 58, 57, 42, and 38. The panel referred the top three scored candidates to the Selecting Official (SO). Complainant received the total score of 42 and was not referred to the SO. The SO ultimately selected the two highest scoring selectees (SE1 for GS-9 and SE2 for GS-11, scored 64 and 61, respectively) who were younger than Complainant. The SO was not part of the interview panel. SE2 was noncompetitively reassigned to the GS-11 position at issue as he was already at the GS- 11 level. The interview panel indicated that Complainant did not perform well during his interview. The interview notes reflect that Complainant’s answers lacked details and he did not provide specific examples. Complainant indicated that he was more qualified than the selectees because he had over 30 years of experience, oversaw programs above his pay grade, and received an Achieved Excellence annual performance rating. The interview panel noted that they considered Complainant’s qualifications as described above. The interview panel stated that SE1 managed a heavy workload, prioritized workloads, and emphasized an importance of teamwork. The panel indicated that SE2 was responsible for managing fleet and prioritized taskings, was very organized, and was customer service oriented. The AJ found that Complainant failed to show that the Agency’s articulated reasons were pretextual. The AJ issued her decision finding that the Agency did not discriminate against Complainant as alleged. The Agency issued its final order implementing the AJ’s decision. 2022002750 3 Complainant appeals from the Agency’s final order. Complainant submits his appeal brief contesting the AJ’s decision and the Agency’s final order finding no discrimination regarding his complaint. 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. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. 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 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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. 2022002750 4 See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In the instant case, the AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. The Agency indicated that Complainant did not interview well for the position at issue, GS-11. Complainant received the total interview score of 42, i.e., the sixth out of the seven candidates interviewed. The SO, recommended by the interview panel, selected the two highest scoring selectees, i.e., the total score of 64 and 61, for the position at issue. Upon review, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for not selecting him for the position. Complainant claimed that he was more qualified than the selectees because he had over 30 years of experience, oversaw programs above his pay grade, and received an Achieved Excellence annual performance rating. However, there is no indication his stated attributes were required for the position at issue. We find that Complainant failed to show that his qualifications for the position were plainly superior to the selectees’ qualifications. See Wasser v. Dep’t of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Further, SE2 was already GS-11 and was noncompetitively reassigned to the GS-11 position at issue. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022002750 5 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). 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. 2022002750 6 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 March 8, 2023 Date
