[Redacted], Rayford H., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022000530 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rayford H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice, Agency. Appeal No. 2022000530 Hearing No. 480-2021-00070X Agency No. EOI-2020-01510 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 August 18, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Immigration Judge, IJ-4, at the Agency’s Executive Office for Immigration Review in San Diego, California. He had held this job since 2010. On June 25, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African, Asian and Caucasian), national origin 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 2022000530 (Hispanic, Puerto Rican), color (brown), sex (male), disability,2 age (YOB: 1955), and in reprisal for prior protected EEO activity when, on June 5, 2020, Complainant was notified that he was not selected for an Appellate Immigration Judge position, advertised under vacancy announcement IJ-10681663-20-AS and located at the Immigration Court in San Diego, California. After an investigation, the Agency provided Complainant a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On June 23, 2021, the AJ issued a Notice of Proposed Summary Judgment (Notice). Both Complainant and the Agency submitted responses to the AJ’s Notice of proposed summary judgment. On July 12, 2021, the AJ issued a decision by summary judgment in favor of the Agency. In that decision, the AJ determined that Complainant, in his response to the Notice, did not raise any genuine issues of material fact. By reference to his findings in the Notice proposing summary judgment, the AJ found that Complainant qualified for an initial interview by a three-member panel based on his prior experience as an Immigration Judge. The panel members prepared written narratives of their impressions of the interview, which were forwarded to the Referring Official. Based on these narratives, the Referring Official (Caucasian, Scots-Irish, white, male, born 1975) selected twelve candidates3 to advance to a Finalist Panel for a second interview. Complainant was not among the twelve referred to the Finalist Panel. The Referring Official testified that all three initial interview panel members questioned Complainant’s suitability for the position and noted that Complainant had “difficulty with being succinct” while answering the interview questions. After the interviews before the Finalist Panel, four of the twelve were selected for the position. As Complainant was not among the twelve candidates referred to the Finalist Panel, he was not selected for the position. The AJ concluded that other than his unsupported assertions, Complainant presented no evidence that the selection decisions were motivated by discriminatory or retaliatory factors. On August 18, 2021, the Agency issued a final decision adopting the AJ’s finding of no discrimination or unlawful retaliation. 2 Complainant stated that, at the time of the selection at issue, he had been diagnosed with sleep apnea, foot issues, PTSD and respiratory issues, which cause difficulties with traveling to work, mobility, stress and sleep. As he was an internal candidate for the position, he believed those involved in the selection were aware of his disabilities. 3 The report of investigation provides demographic information on eleven of the twelve candidates referred for a second interview: 9 were White, 1 was African American, 1 was Hispanic; 10 were male and 1 was female; one was age 30-39, 4 were ages 40-49, 4 were ages 50-59, 1 was age 60-69, and 1 was age 70-79. 3 2022000530 The instant appeal followed. On appeal, Complainant mainly argues, in summary, that the Agency failed to timely issue the final order within forty calendar days from the AJ’s decision, and that therefore, the Agency’s final order should be vacated, and the Commission should sanction the Agency. Complainant further requests a new hearing before another EEOC AJ. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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 failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. Here, we find no error on the part of the AJ in concluding that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 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. 4 2022000530 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 Agency’s witnesses provided evidence that Complainant was among many applicants for the position who were selected to be interviewed by a three-person panel. Based on the panel members’ individual reports of the interviews, the Referring Official recommended twelve candidates to move on to a second interview where the ultimate selectees were chosen. Complainant was not among the twelve candidates recommended by the panel for a second interview. The evidence indicated that the panel members found Complainant had difficulty being succinct in answering the questions, and they judged other candidates to be better qualified for further consideration for the position.4 The AJ correctly determined that Complainant failed to proffer adequate evidence to show that the Agency’s articulated reasons for not selecting him were a pretext for discrimination. Complainant contends he was the “most qualified” candidate” and “one of the most efficient judges in the country,” and therefore should have been selected. While Complainant has provided much information about his own qualifications on appeal, there is no direct evidence of discrimination and Complainant has not shown that any alleged disparities in qualifications between him and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we find that Complainant failed to establish by a preponderance of the evidence that he was discriminated against as he alleged. With regard to his retaliation claim, Complainant’s asserted prior protected activity was seeking EEO counseling concerning in February or March 2020 concerning certain alleged actions of the Referring Official. 4 Complainant argues that in a similar selection process in 2018 he was recommended for a final interview and so should have again been recommended in the present process. However, the Referring Official stated that in the 2018 process none of the panelists who conducted the interviews recommended Complainant’s selection. Even so, he explains, Complainant was elevated to a Finalist Interview in 2018 because that was the practice at the time for internal candidates, although he was not ultimately selected. In the instant selection for the 2020 vacancy, the Referring Official stated that he took into account that six interviewers, over the course of two years, had not recommended Complainant for the position in question. 5 2022000530 However, the record evidence reflects that the Referring Official only became aware of this asserted protected EEO activity after he had referred the twelve candidates (not including Complainant) to the Finalist Panel. Therefore, the record does not establish that unlawful retaliatory animus played a role in the disputed decision. Finally, regarding Complainant’s request for sanctions, the record reflects that the Agency timely issued a final order on August 18, 2021, which, contrary to Complainant’s assertion, was submitted within forty calendar days of the AJ’s July 12, 2021 decision. However, it appears that due to a clerical error, Complainant did not receive the copy of the Agency’s final order immediately after its issuance. Documentation in the record reflects that on October 18, 2021, Complainant requested a copy of the final order which the Agency provided on October 19, 2021. Therefore, it appears the Agency immediately remedied its service error the day after Complainant notified the Agency of its mistake. Additionally, there is no indication that Complainant was prejudiced by the delay, given that the AJ’s decision informed Complainant of his right to file an appeal to the Commission directly from the AJ’s decision in the event that the Agency failed to issue a final order within forty calendars days. Consequently, the delay Complainant encountered did not prevent him from adjudicating his appeal. For these reasons, we deny Complainant’s request for sanctions against the Agency. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adoption 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). 6 2022000530 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. 7 2022000530 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 31, 2022 Date