[Redacted], Willie L. 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022001892 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Willie L.1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency. Appeal No. 2022001892 Hearing No. 570-2019-00050X Agency No. HS-HQ-00397-2018 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 24, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a Management and Program Analyst, GS-0343-14, in the Office of Program Accountability and Risk Management (PARM) in Washington, D.C. On February 2, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on October 16, 2017, Complainant learned he was not selected for the position listed under Job Announcement No. IMP- 10037816-17-CPO (Program Analyst). 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 2022001892 Complainant timely applied for the position of Program Analyst, 0343, GS-15, in the PARM office, under Vacancy Announcement No. IMP-10037816-17-CPO in August 2017. The Complainant was deemed qualified and placed on the Certificate of Eligibles. Human Resources submitted the Certificate of Eligibles to a three-person interview panel that reviewed the candidates’ resumes and selected 13 candidates to interview, including Complainant. The panel interviewed Complainant, and, on October 16, 2017, he was informed he was not selected for the position. Although the announcement did not specify several vacancies, four positions were filled using the same certificate. The vacancies were in the Acquisition Governance Division, Acquisition Workforce Staffing Division, and Program Management Support Division. Complainant’s second-level supervisor (S2) was the selecting official for the Program Analyst position. S2 selected the panel members who were division supervisors in the office. The interview panel was comprised of the Director Acquisition Governance Division, PARM (P1), the Director of Acquisition Workforce Staffing Division, PARM (P2), and the Director, Acquisition Program Management Support Division, PARM (P3). The interview panel asked the candidates the same questions and rated each applicant individually. A final score was tallied, and the candidates were ranked based on their final scores. The top five candidates were referred to S2 for consideration. Complainant was ranked 10th out of 13, therefore he was not referred to S2 for selection. S2 selected three of the top five ranked applicants to fill two positions in the Acquisition Support Division and one vacancy in the Acquisition Governance Division. S2 later filled another position from the same certificate in the Acquisition Support Division after another GS-15 position was created. Complainant scheduled a debriefing with each member of the interview panel and S2. After the debriefings, he concluded the selections were based on personality rather than best-qualified candidates. Complainant also believed race was a factor in his non-selection. Complainant contended that his performance in his current position made him better qualified and he was level 3 certified in program management. Complainant said the interview panel asked him general and open-ended questions rather than questions directed to skills and abilities. Complainant believed he submitted a strong resume and that he performed well in the interview. P1 explained that there were specific skill sets for the different divisions because each division had a separate mission. P2 explained the panel used three categories to identify candidates’ specialized experience in the areas of risk management, requirements, and component lead/Information Technology (IT) background. P1 stated Complainant’s certification in project management and work experience were considered. However, P1 also said that he told Complainant during the debriefing that Complainant needed to better understand the acquisition process to move forward. Both P1 and P2 stated Complainant was not referred to S2 for consideration because of his final ranked score. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). 3 2022001892 Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ found that the Agency provided legitimate, nondiscriminatory reasons for its actions and Complainant failed to establish the Agency’s actions were pretext for discrimination. S2 explained the Agency was looking for general acquisition experience and subject matter expertise in the specialized areas of risk management, requirements, and component lead/IT experience when filling the vacant positions. S2 explained from the list of top-five applicants, she chose one selectee for her risk management experience; the second selectee for his requirements management experience; and the third selectee for his IT and previous program oversight experience. The AJ found Complainant failed to provide evidence that he was plainly superior to the selectees. Additionally, the AJ stated Complainant failed to provide any evidence to infer that the application or interview processes were discriminatory in any manner. All candidates were asked the same questions and each interviewer used the same scale to rank each candidate. Moreover, Complainant’s mere dissatisfaction with the rationale of his non-selection during his debriefings with each panel member and S2 was not sufficient to show pretext. The AJ concluded that Complainant failed to establish by a preponderance of the evidence that he was subjected to discrimination as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL Complainant, through counsel, argues that the AJ erred in granting summary judgment in favor of the Agency as material facts remain in dispute; the responsible management officials should be subject to direct and cross-examination for credibility determinations; and that the Agency’s reasons for its actions were pretext for discriminatory animus. 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 4 2022001892 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. 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Complainant has not presented evidence sufficient showing the Agency was motivated by unlawful discriminatory animus regarding the allegation at issue. 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. 5 2022001892 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). 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. 6 2022001892 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 March 22, 2023 Date