0120151985
04-21-2017
Clotilde D.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (U.S. Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clotilde D.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(U.S. Citizenship and Immigration Services),
Agency.
Appeal No. 0120151985
Hearing No. 480-2014-00050X
Agency No. HSCIS006652013
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ's) final order, after the Agency did not issue a final decision within 40 days of the AJ decision. Her appeal concerns her 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 was an applicant for employment, seeking rehire at the Agency's California Service Center, U.S. Citizenship & Immigration Service, in Laguna Niguel, California. She was a former employee, who had retired from the same facility in 2012.
On March 19, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII when, on April 1, 2013, she was not interviewed or selected for the position of Director of the California Service Center (CSC).2
At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ held a hearing on October 28, 2014. The AJ heard from two witnesses at the hearing, including Complainant. Eleven exhibits were admitted into evidence.
The pertinent record shows that Complainant was employed by the Agency in senior level positions until July 7, 2012. Complainant had been the Director of CSC and was a Senior Executive Service (SES) employee. She was the immediate supervisor of the Deputy Director of the CSC. In her affidavit, Complainant stated that she had a good professional relationship with the employee and she stated that she would also describe him as a friend and her "esteemed colleague." Exhibit AE-2 at 38.
In 2008 and 2009, the Agency's Office of Security and Integrity (OSI) conducted a series of investigations of Complainant and the named Deputy Director, who was also in an SES position. Complainant issued the Deputy Director a letter of reprimand on June 14, 2010. Complainant did not consult with higher officials before issuing the letter of reprimand.
On June 16, 2010, the OSI issued a written Report of Investigation regarding the investigations. On December 7, 2010, the Acting Associate Director of the Agency's Customer Services Directorate issued a notice of proposed removal against the Deputy Director. The deciding official on the proposed removal of Complainant's subordinate employee was also involved in the selection process at issue in the current complaint as the recommending official. The recommending official had been privy to the OSI reports, which included statements from Complainant.
In June of 2010 Complainant filed a whistleblower retaliation complaint with the United States Office of Special Counsel (OSC) and, in August of 2010, she filed a formal EEO complaint to challenge the Agency's action of reassigning her away from her SES position as the CSC Director.
On June 3, 2011, the Deputy Division Chief of the Agency's Customer Service Directorate rescinded the December 7, 2010 letter of proposed removal against the Deputy Director because the proposed removal included specifications for which the employee had already been issued the letter of reprimand by Complainant. The employee subsequently was able to challenge his proposed removal stating that he had already been issued a letter of reprimand for the same offenses. The official who did not recommend selecting Complainant in the instant complaint stated that he concluded and believed that Complainant's issuance of the letter of reprimand to the Deputy Director was suspicious.
In September of 2012, Complainant and the Agency settled Complainant's OSC and EEO complaints. The settlement agreement did not prohibit Complainant from thereafter applying for employment with the Agency.
In November of 2012, the Agency announced a vacancy for the position of Director of the CSC, which was the SES position that Complainant formerly held. The announcement stated that the applications would be evaluated by a rating and ranking panel. The Executive Resources Board ("ERB") was to review the results and make recommendations on the final selections to the appointed official. All three of the members recused themselves because the panel members had been named in her prior OSC or EEO complaints.
The recommending official was the Deputy Director of the Agency and had been Complainant's third-level supervisor. The recommending official received two lists of qualified applications. The recommending official did not review Complainant's application and did not consider Complainant for the position. At the time of the non-selection at issue here, the recommending official was aware that Complainant had settled her EEO complaint. Hearing Transcript at 67-68. As part of the settlement, Complainant agreed to retire. Complainant's last position with the Agency was as Chief, GS-15 of the Agency's Immigration Training Branch.
After interviewing the successful candidate, the recommending official recommended the selectee to the selecting official, who was the Director for the Agency. The selectee was interviewed by the selecting official and appointed the selectee to the position. Both Complainant and the selectee had held an SES position.
The AJ Decision
The AJ found that Complainant established the prima facie elements of a retaliation claim. The AJ also found that the Agency articulated a legitimate non-retaliatory reason for not selecting Complainant for the CSC Director position. The AJ reasoned that the Agency presented hearing testimony and documentary evidence that the recommending official did not consider Complainant for the position because the recommending official "questioned Complainant's integrity and leadership ability." The AJ found that Complainant did not establish by preponderant evidence that the Agency's reason for not selecting Complainant was a pretext for retaliation against Complainant based on her prior EEO activity. In so ruling, the AJ recognized that the Agency witness provided "different and shifting explanations for why she recommended [the selectee] and not Complainant be selected for the CSC Director position." The AJ concluded that "although [the Agency witness] was not wholly credible for the reasons discussed above, her explanation at hearing regarding why she did not consider Complainant was reasonable and her beliefs about Complainant are found to have been held in good faith." The AJ found that Complainant did not establish that she was retaliated against when she was not selected for the position of Director of the California Service Center.
When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency's final action. Complainant then appealed to the Commission.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that two of the 35 findings were factually erroneous and that the Agency's sole witness was not credible. With regard to the two disputed facts, she stated that the Deputy Director became Deputy on May 20, 2011, not in 2010. She also disputes that the Agency had to reissue a new proposed discipline to an employee due to her actions in issuing the subordinate employee a secretly issued reprimand. Complainant maintains that "the sole and only credible reason for the Complainant's non-selection was retaliation by the selecting official for the Complainant's prior EEO activity." Complainant acknowledges that she does not challenge the AJ's other 33 Findings of Fact.
The Agency requests that we affirm the AJ decision because Complainant does not dispute the AJ's findings for the most part and the two challenged facts do not provide a basis to overturn the AJ's decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Here, Complainant does not challenge the vast majority of the AJ's factual findings. After careful review of the record, we conclude that substantial evidence supports the AJ's determination that legitimate, non-discriminatory reasons were given for the decision to select Complainant for the position in question, which Complainant failed to prove, by a preponderance of the evidence, was a pretext designed to mask the true retaliatory motivation.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015). In this case, the AJ's findings are supported by the record. The AJ acknowledged that there were issues of credibility, but rendered his decision based on his observations of the record as a whole. The AJ's findings are fully supported by this record. We discern no reason to disturb the AJ's ultimate conclusion that unlawful retaliation has not been proven here.
CONCLUSION
Accordingly, for the reasons stated herein, we AFFIRM the AJ's decision, which became the Agency's Final Order, that unlawful retaliation was not proven here.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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
April 21, 2017
__________________
Date
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 On February 11, 2014, Complainant withdrew her claim of non-selection regarding a second non-selection and withdrew her claim of sex discrimination.
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