0120063943
12-04-2007
Morris I. Onyewuchi, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Morris I. Onyewuchi,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120063943
Hearing No. 110-2005-00251X
Agency No. 060148
DECISION
On June 17, 2006, complainant filed an appeal from the agency's May 11,
2006, final decision 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely
and is accepted pursuant to 29 C.F.R. � 1614.405(a). For the following
reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Assistant Chief Counsel, GS-13, in the agency's Atlanta, Georgia
office. On October 20, 2004, complainant filed an EEO complaint alleging
that he was discriminated against on the bases of race (African-American),
national origin (Nigerian), and disability when on June 10, 2004, the
agency failed to select him for the position of Associate Area Counsel
in the Office of Chief Counsel in Dallas, Texas. At the conclusion of
the investigation, complainant was provided with a copy of the report
of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew his request. Consequently, the agency issued
a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision
concluded that complainant failed to prove that he was subjected to
discrimination as alleged. Specifically, in that decision, the agency
concluded that complainant failed that he was an individual with a
disability under the Rehabilitation Act. The final decision further
concluded that complainant failed to prove that the agency's articulated
reasons for its actions were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
discrimination and makes arguments in support of his contention.
Specifically, complainant argues that he is an individual with
a disability entitled to coverage under the Rehabilitation Act; the
agency's reasons for not selecting him for the position were not credible;
and the agency pre-selected the applicant selected for the position.
In its brief, the agency requests that the Commission affirm its finding
of no discrimination.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999). (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case claiming
discrimination is a three-step process as set forth in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 802-803 (1973), and its progeny. See
Hochstadt v. Worcestor Foundation for Experimental Biology, Inc.,
425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976)
(applying McDonnell Douglas to retaliation cases). For complainant to
prevail, he 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 Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000).
This 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. United States Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department
of Transportation, EEOC Request No. 05900150 (June 28, 1990).
We find that the agency provided legitimate, non-discriminatory reasons
for its actions. Specifically, two recommending officials stated
that complainant was not among the three candidates recommended to the
deciding official for the position. Unlike the top three recommended
applicants, complainant declined to appear for an in-person interview;
complainant had less experience practicing immigration law; complainant
laughed inappropriately during the telephonic interview; complainant
refused to assess his weaknesses during the interview; and, complainant
appeared to answer some questions insincerely during the interview.
One of the recommending officials further stated that she had personally
supervised the selectee and knew that he was "exceptionally hard-working,
intelligent, independent, and possess[ed] inter-personal skills that would
enable him to effectively counsel the client and contribute to our field
area team." The officials further stated that they determined that the
selectee was the best candidate for the position because he graduated
from a top-ranked law school; had worked for a private law firm; had
experience in EEO and labor law; had served as served as Acting Deputy
Chief Counsel in Miami, Florida; and, had presented himself very well
during the interview. The deciding official stated that the selectee
was chosen for the position because of the positive impression he made
during the interview and his superior qualifications for the position.
Complainant disputes the agency's claim that he laughed inappropriately,
answered questions insincerely, and asked one of the recommending
officials a succession of inappropriate questions during the interview.
However, a hearing may have allowed an AJ to determine which version of
the facts was more credible, but complainant withdrew his request for
a hearing. Complainant also argues that although he did not interview
in-person, he was informed by the agency that a telephone interview
would be acceptable. We determine that while a telephone interview
may be acceptable, it does not mean that it is equivalent to appearing
in person. Finally, complainant contends that he was more qualified
than the selectee, and the selectee was pre-selected for the position by
his former supervisor. However, we determine that complainant failed to
prove that his qualifications for the position were plainly superior to
the selectee's qualifications or that the agency's action was motivated by
unlawful discrimination. Consequently, we find that the agency properly
found no discrimination.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_December 4, 2007_______________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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