[Redacted], Mitchell G., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Oct 6, 2022

Appeal No. 2021004125 (E.E.O.C. Oct. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021004125 Hearing No. 510-2019-00443X Agency No. HS-ICE-0206-2018 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 June 28, 2021, 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. 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 a Customs and Border Patrol Technician at the Agency’s U.S. Customs and Border Protection in Guaynabo, Puerto Rico. On December 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (43) when, on August 30, 2018, Complainant became aware that he was not selected for the Seized Property Specialist position. 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. 2021004125 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision without a hearing on May 25, 2021. In the AJ decision, the AJ found that while Complainant argued that he had 20 years of experience in law enforcement and was the best candidate, his resume failed to establish that he possessed the requisite qualifications listed in the vacancy announcement. In contrast, the selected candidate (Selectee) explicitly noted several years of experience for a number of the vacancy qualifications, including working in asset inspection, tracking, retention, and destruction in her current position. Ultimately, the AJ determined that the Agency articulated a legitimate non-discriminatory reason for their selection, and Complainant failed to show pretext. 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. On appeal, Complainant initially argues that his counsel was not notified of the Notice of Proposed Judgment from the AJ, nor any other motions sent to Complainant. As to his non- selection, he argues that it is an undisputed fact that none of the candidates had prior experience as Seized Property Specialists, and his interview was not appropriately tailored to ascertain information which would elicit information regarding his skills enumerated in the vacancy announcement. In addition, he argues that the Selectee had no experience in confiscation, seizure of property, or other processes, contrary to the AJ’s decision. As a basis for this argument, Complainant contends that the Selectee’s resume did not explicitly denote her experience in the majority of assets law enforcement seize. Complainant also makes arguments regarding the Selectees personal history, suggesting she was unfit for the position. 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. (Aug. 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). As to Complainant’s contentions regarding his counsel, we note that the AJ addressed this issue in their decision. To this end, the AJ found that Complainant’s file lacked any notice of appearance or e-file registration indicating that Complainant was represented. In the only available e-file registration at the time of the AJ decision, March 30, 2020, Complainant was listed as his own representative. At the present, it does not appear that Complainant has shown any evidence to the contrary. We do not find any reason to disturb the AJ decision due to Complainant’s failure to properly provide notice of appearance for his counsel. 2021004125 3 As to the substance of Complainant’s claim, while Complainant repeatedly contends that the Selectee did not have the requisite experience for the position and he was better qualified, the record indicates that Complainant was ranked at the bottom of the list of applicants following the interview process. See Report of Investigation (ROI) at 00092. In contrast, the Selectee received the highest score and was noted as better qualified than Complainant. Id. at 00094. The Selecting Official plainly stated that the Selectee “demonstrated significant knowledge and experience handling seized properly, to include policy and procedure.” Id. Concerning his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We note that Agencies have broad discretion to carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We also note that the Commission has long held that a person’s length of experience does not necessarily mean he is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). We acknowledge that Complainant contends that he had sufficient experience, in both quality and quantity. However, the record indicates that following a selection process, wherein his experience was considered, he was ranked below the other candidates, including the Selectee. To the extent Complainant has addressed the Selectee’s reputation on appeal, we note, as did Complainant,2 that any moral failings contained in a candidate’s background or personal history are addressed internally by the Agency following hiring. The existence of these issues has no bearing on the candidate selection made subsequent the application and interview process. Moreover, should the Selectee later be disqualified or removed due to personal or background reasons, such a finding does not implicitly demonstrate wrongdoing on the part of the selecting officials. Complainant has not shown how the Selectee’s background diminishes her success in the interview process, nor how her supposedly suspect past elevates his own fitness for the position. In sum, 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 discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2 Complainant admits that the information regarding Selectee noted in his appellate brief has been brought to the attention of the U.S. Attorney’s Office in San Juan and was investigated internally by the Agency. 2021004125 4 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). 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). 2021004125 5 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 October 6, 2022 Date