Alton F.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Dec 13, 2016

0120142306 (E.E.O.C. Dec. 13, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alton F.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.

Appeal No. 0120142306

Hearing No. 570-2012-00008X

Agency No. USM-2010-00164

DECISION

On June 13, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s May 15, 2014, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

On January 7, 2007, Complainant entered on duty with the Agency as a GS-1102-15
Supervisory Contract Specialist in the Judicial Security Division (JSD), Office of Court
Security Contracts (OSC). Complainant served as the Chief of OSC. His duties included the
responsibility for managing and directing the award, administration, and termination of
security system contracts, Court Security Officer (CSO) contracts, and maintenance contracts;
the development of the JSD acquisition policies, procedures, instructions, and business rules;
and supervision of staff including selecting personnel, making work assignments, and
providing technical and policy guidance for work accomplishment, resolving work related

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.
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problems, and evaluating performance. During the relevant time, Complainant’s first level
supervisor was the Deputy Assistant Director for JSD (S1). From August 2008, through
Complainant’s retirement in January 2011, Complainant’s second level supervisor was the
Assistant Director, JSD (S2).

In April 2010, S2 arranged for a detail of Complainant for a period of 180 days from JSD,
OSC to the Financial Services Division. To fill the void following Complainant’s
reassignment, S2 arranged to have Person A detailed from his position of Supervisory Contract
Specialist in the Asset Forfeiture Division, to the position of Acting Chief, OSC. On October
10, 2010, Complainant returned from his detail and was reassigned to the position of Special
Assistant to S1.

On November 16, 2010, the position of Supervisory Contract Specialist, GS-1102-15, in the
JSD, was advertised under OPM Job Announcement Number CK402567JC. Complainant and
Person A were among several applicants for the position. Person A was selected for the
position.

On March 4, 2011, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and age (61) when:

On January 13, 2011, he contacted a Human Resources Specialist and learned he was
not selected for the position of Supervisory Contract Specialist, GS-1102-15, under job
announcement CK402567JC.

On May 10, 2011, Complainant requested that the Agency allow him to amend his complaint
to include a claim that he was subjected to discrimination based on race and age when on April
5, 2010, he was informed by senior managers that he was being removed from his position as
the Chief, Judicial Security Contracts, GS-1102-15.

On May 19, 2011, the Agency determined Complainant’s amendment was untimely raised with
an EEO Counselor. The Agency stated Complainant initiated EEO Contact on January 19,
2011, when he was not selected for the Supervisory Contact Specialist position on January 13,
2011. The Agency noted that Complainant averred he was not officially removed from his
position on April 5, 2010, but was sent on a detail for 180 days. The Agency noted that
Complainant explained that upon his return to JSD, he was reassigned to the position of Special
Assistant to the Deputy Assistant Director. The Agency also noted that in his formal
complaint, Complainant stated that on April 5, 2010, he was informed by JSD managers that
he would no longer be the leader of his division “effective immediately.” The Agency found
that Complainant did not contact the EEO Office to request counseling until 289 days after
learning he was removed from his position. Additionally, the AJ noted that even if
Complainant’s removal was not effective until his return from the 180-day detail, which was
approximately October 4, 2010, his EEO Contact was more than 100 days after his return from
the detail. Thus, the Agency dismissed the amended claim pursuant to 29 C.F.R.
§1614.107(a)(2), for untimely EEO Counselor contact.
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At the conclusion of the investigation on the accepted claim, 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
requested a hearing. On February 11, 2014, the AJ assigned to the case issued a Notice of
Intent to Issue a Decision Without a Hearing. On March 14, 2014, the Agency filed its
Agency’s Motion for Summary Judgment. The AJ issued a decision without a hearing on
April 8, 2014. The AJ’s decision stated that Complainant did not file a response to the AJ’s
Notice or to the Agency’s Motion. The AJ granted the Agency’s Motion for Summary
Judgment and concluded the Agency did not discriminate against Complainant.

The Agency subsequently issued a final order on May 15, 2014. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

On appeal, Complainant claims that the AJ erred in stating that he did not file a response to the
AJ’s Notice or the Agency’s Motion. Complainant notes the AJ’s Order stated that all
responses to the AJ’s Notice of Intent to Issue a Decision Without a Hearing were due on
February 28, 2014. In support of his assertion that he timely responded to the AJ’s Notice,
Complainant provided a receipt from Washington Express LLC showing delivery to the
EEOC’s Washington Field Office on February 28, 2014, at 13:09.

In addition, Complainant argues that the AJ improperly denied his amendment to include his
removal from the position of Chief of Judicial Security Contracts. Complainant notes he
attempted to amend his complaint on May 10, 2011, with the Agency. He states his request
was made prior to the beginning of the investigation. He states the Agency denied the request
citing timeliness of the action; however, the Agency made no mention of the relevancy of the
request. Complainant states he made a second request to amend his complaint to the AJ via
Motion on April 4, 2012. Complainant states the AJ denied his request to amend his
complaint.

In response to Complainant’s appeal, the Agency recognizes that both parties responded to the
AJ’s Notice of Intent to Issue a Decision Without a Hearing. The Agency states that although
Complainant submitted his response to the Notice, the AJ’s decision indicated that she did not
receive the response and therefore did not consider it in rendering judgment for the Agency.

The Agency addresses Complainant’s request to amend his complaint. The Agency notes that
in an Order dated May 3, 2012, the AJ ruled, due to untimeliness, that Complainant could not
amend his complaint to include the issue that he was removed from his position as Chief,
Judicial Security Contracts.

The Agency also states it is undisputed that the Selectee (Person A) had the requisite
experience for the position at issue. The Agency notes it was undisputed that Complainant had
significant issues in his management of OSC, the ability to timely award judicial security
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contracts, and the interpersonal relationships with attorneys in the Agency’s Office of General
Counsel and the DOJ. The Agency explains that these issues resulted in Complainant’s
reassignment from the position of Chief, OSC, in April 2010. The Agency argues it is
illogical to suggest that the Agency would competitively select Complainant from a position
from which he had just been reassigned for performance reasons.

The Agency states Complainant produced no evidence that the Assistant Director’s articulated
reasons for selecting Person A were not worthy of belief and were a pretext for race and/or
age discrimination. The Agency argues Complainant produced no evidence suggesting or
inferring race-based discrimination. The Agency notes Complainant suggests that a negative
remark made by S2 evidenced age bias. The Agency states that S2 explained the remark was
not referring to Complainant’s age, but only to his inability to award contracts in a timely
fashion while he was Chief, OSC. Specifically, the Agency notes in 2008, S2 met with
Complainant, S1, and OGC Attorney 1 to discuss concerns about the timely awarding of the
judicial security contracts. The Agency explains that S2 challenged Complainant at that time
to deliver 13 new contracts within one year. Complainant responded, “Sir they will either be
finished or I will be retired.” The Agency states that by the spring of 2010, the contracts had
not been awarded, recalling Complainant’s statement, S2 remarked to Complainant, “You told
me if you didn’t have new contracts for me last summer, you would be retired. What are your
retirement plans?” The Agency states the remark at issue was not age based; it was
performance based.

In addition, the Agency notes that Complainant argued that Person B, GS-15 head of the Office
of Security Systems was a similarly situated individual, in that he was not reassigned from his
position despite performance issues that were similar to Complainant’s performance issues.
The Agency contends Person B was not similarly situated. The Agency notes the sole accepted
issue in this case was whether Complainant’s non-selection for a GS-15 position was due to
discrimination. The Agency states that Complainant’s performance issues were relevant to
whether the Selecting Official (S2) believed he was the best qualified candidate for the
position. The Agency argues that regardless of whether Person B had performance issues
sufficiently severe enough to consider reassignment, Person B was not a candidate for the GS-
15 position at issue. Moreover, the Agency notes S2 acknowledged that Person B was having
performance issues and stated he considered reassigning Person B, but S2 was aware that
Person B represented the Agency well with the Administrative Office of the Courts and the
judges, while Complainant did not. The Agency states that while Person B had performance
issues managing his office, Complainant had performance issues managing his office and in
representing the Agency before its clients.

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 for 29 C.F.R. Part 1614, Chap. 9,
§ VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review “requires that the
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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”).

At the outset, we address Complainant’s contention that he timely submitted a response to the
AJ’s Notice of Intent to Issue a Decision Without a Hearing which was due on February 28,
2014. Based on a review of the record, we find Complainant timely submitted a response to
the AJ’s Notice on February 28, 2014. Thus, we find that Complainant’s February 28, 2014
response was timely and the Commission will now consider Complainant’s response.

Next we address Complainant’s request to amend his complaint to include his claim that he was
removed from his position as the Chief, Judicial Security Contracts. Upon review, we find the
AJ properly dismissed this claim for untimely EEO counselor contact.

Upon review of the record we find that the AJ properly found that the present complaint was
suitable for summary judgment. We note that the record is adequately developed and there are
no material facts in dispute. In the present case, the Agency articulated legitimate,
nondiscriminatory reasons for not selecting Complainant for the Supervisory Contract
Specialist position. The Agency contended that Person A was the best qualified candidate for
the position and Complainant was not selected because of demonstrated work performance
issues. Complainant failed to show that the Agency’s actions were a pretext for race or age
discrimination.

CONCLUSION

Accordingly, the Agency’s final order is AFFIRMED.

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 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.
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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
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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

December 13, 2016
Date