0120152170
02-25-2016
Clinton M.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clinton M.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120152170
Agency No. BOP-2012-0391
DESCISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 26, 2015 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.
BACKGROUND
During the period at issue, Complainant worked as a Correctional Officer, General Service (GS)-0007-07, at the Agency's Federal Correctional Complex (FCC) in Petersburg, Virginia.
On June 24, 2011, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against him in reprisal for prior EEO activity when:
1. on October 6, 2011, he was not selected for the position of Sports Specialist, General Schedule for Law Enforcement (GL)-0030-09 (detail training); and
2. on November 4, 2011, the Agency posted a notice denying him access to the institution following his resignation from FCC Petersburg.
After the investigation, Complainant timely requested a hearing and the EEOC Administrative Judge (AJ) held a hearing by videoconference on December 11, 2014 and January 13, 2015. The AJ appeared from Raleigh, North Carolina, while the parties and witnesses were located in Petersburg, Virginia. The AJ issued a decision on April 1, 2015, finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of retaliation. The AJ further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
In reaching this conclusion, the AJ noted that the Agency allows employees to receive on-the-job training for trades and crafts positions. These "trainee" positions are temporary details which are not to exceed one year. The Agency requires the supervisor to develop a detailed training program to be accomplished within 12 months or less. Once selected, the incumbent trainee signs a training agreement. However, the employee retains his/her current series and grade.
The AJ noted that from August 2011 through September 2011, the Agency advertised its intent to offer one Sports Specialist position. The major duties for this position included the following: (1) designs and implements leisure-time activities for individual and team sports; (2) plans the institutions' sports program; (3) develops, improvises, and adapts the various recreational activities to the wide range of participant interests and needs; (4) schedules and publicizes tournaments and other sporting events; (5) arranges for supplies and services need to accomplish scheduled activities; (6) provides guidance counseling and leisure counseling services to the inmate population; (7) instructs/coaches individual inmates and/or groups; and (8) serves as physical fitness coordinator for units in confined spaces.
In addition to these duties, the subject vacancy announcement listed the qualification requirements of the position. The AJ noted that a qualified candidate must meet the qualification standards for the GL-030 series.2 Also, the qualified candidate must have specialized experience to demonstrate the knowledge, skills, and abilities (KSAs) to perform the duties of the position. The identified KSAs are as follows: (1) ability to communicate orally; (2) ability to communicate in writing; (3) ability to interpret and apply policy/guidance; and (4) aptitude for acquiring the knowledge and skills necessary to perform the duties of the position.
Further, the AJ noted that in October 2007, Complainant started working for the Agency as a Correctional Officer. The AJ noted that according to his resume, Complainant held a degree in Computer Networking. At the time of his application, Complainant was a Correctional Officer GS-007-07. Before working for the Agency, Complainant worked as a Law Enforcement Officer with the Federal Reserve Board for six years, as a Correctional Officer with the Virginia Nottoway Correctional facility for two years, and served as a U.S. Marine for four years. In addition, Complainant worked part-time as a front desk receptionist and fitness associate at a commercial gymnasium for approximately five years. As a part-time employee at the gym, Complainant coordinated fitness classes, wrote instructions for the proper use of gymnasium equipment, organized and referred basketball games, and instructed a fitness class.
The AJ noted that once the vacancy announcement closed, the Agency determined that seven applicants, including Complainant, were considered qualified for the subject position. The Agency then forwarded the application packages to the selecting official. After reviewing the qualifications and applications, the selecting official chose two applicants for the subject positions. Thereafter, Complainant submitted his letter of resignation. The AJ noted that several days after Complainant's resignation, the Human Resources issued a Non-Institutional Access Memorandum to the Warden, Control Center, Lieutenant's office, front lobby office, SIA and Lock Shop. The "no-access" memorandum placed Agency management on notice that Complainant was no longer employed by the Agency, and that he was to be denied access to all institutions and institutional grounds.
The AJ noted that during his testimony, the Warden stated that in regard to claim 1, he was the selecting official for the Sports Specialists (detail for training) positions. The selecting official stated that he selected two applicants because of their length of service at FCC Petersburg. Specifically, the selecting official stated that while all of the applicants were all "highly qualified. What stood out more for the other individuals was [Selectee 1] at the time had approximately 20 plus years with the agency. I selected him for his dedicated services and his knowledge of the recreation department. [Selectee 2] had between 11 and 12 years of experience...the years of service, I selected those two individuals for those positions."
Further, the selecting official stated "I gave a greater weight to the years of service...it's a detail for training position, sports specialist, detail for training. When they all qualify, make the BQ [Best Qualified] list, after I reviewed everything, I just determined the two individuals would meet best in that department at this time."
The selecting official stated that at that time he was not aware of Complainant's prior protected activity. Moreover, the selecting official stated that he did not discriminate against Complainant based on his prior protected activity.
Regarding claim 2, the AJ noted that Complainant did not show that anything other than the Agency's policy to restrict access to employees who were either terminated or resigned from the facility motivated the Human Resources (HR) office to issue the no-access memorandum concerning him. In her decision, the AJ stated "undoubtedly, the fact that the agency failed to consistently follow its own policy is concerning. However, the HR Manager's testimony that her office is fallible and concentrates on issuing no-access Memorandum for terminated employees is credible."
During her testimony, the HR Manager stated "for the most part we try to make sure we do memos for all parties, even institutions, with the exception of retirement and relocating to other bureau facilities. But when notified, we are doubl[y] cautious in terms of submitting one for any other reason in terms of disciplinary reasons and so forth. So, we make sure those are done."
The Human Resources Specialist (Specialist) stated "in Human Resources, we will write a non-access memo for individuals that no longer is employed here to allow the front lobby receptionist or whomever is working up there, because it's not always the same person, to let them know that this individual is no longer employed here and doesn't have access inside the institution."
The Agency, in its final order, adopted the AJ's finding of no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, we again note that the AJ chose to conduct this hearing by videoconference. In Allen v. United States Postal Service, EEOC Appeal No. 01A51259 (August 21, 2006), the Commission recently determined that videoconferencing provides an acceptable alternative to an in-person hearing. The Commission identified a number of factors that an Administrative Judge should consider before electing to proceed via videoconferencing, including: the availability and proximity to the participants of the videoconferencing facilities; the adequacy of the available videoconferencing facilities, to include any technological issues; the cost to the respondent agency (if any) balanced against the savings in travel time for all parties, and the AJ; the number of expected participants; and the objections of the parties, if any. Id.
In the instant case, the AJ, as in Allen, there is no indication of objection to the use of video-conferencing by either party. Under these circumstances, the Commission concludes that the AJ did not abuse her discretion by electing to hold a video-conference hearing; and that the record, including the hearing transcript, does not reflect that the video-conference was so technically deficient as to preclude the AJ from rendering a reasoned decision, notwithstanding the appellate arguments of Complainant to the contrary.
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond his bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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
February 25, 2016
__________________
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 The record reflects that the Office of Personnel Management (OPM) qualification standards for the Sports Specialist GS-0300 series requires either (a) an undergraduate/graduate education study in physical education or (b) general experience as physical education specialist, athletic director, administrator, coach, umpire, official or manager of individual/team sports competitions.
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