0120091462_0120091481
12-24-2009
Dairy Burns and Robert Baker, Complainants, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Dairy Burns and Robert Baker,
Complainants,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal Nos. 0120091462 and 0120091481
Hearing Nos. 450200800351X and 450200900024X
Agency Nos. BOP20080018 and BOP200706231
DECISION
On February 20, 2009, complainants filed appeals with the Equal Employment
Opportunity Commission (EEOC or Commission) from the agency's April 1,
2009 final orders concerning their equal employment opportunity (EEO)
complaints 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. These timely appeals are hereby joined, and are accepted
pursuant to 29 C.F.R. � 1614.405(a).2
ISSUE PRESENTED
Whether complainants were discriminated against on the basis of their
race and/or color (African American/black) when they were not selected
for commercial driver's license (CDL) certification training held from
September 4 through 14, 2007.
BACKGROUND
At the time of the events giving rise to this complaint, complainants
worked, respectively, as a senior correctional officer and senior
officer specialist with the agency's Federal Correctional Institution
(FCI) in Fort Worth, Texas.
Complainants filed EEO complaints alleging the above issue. Following
separate investigations, complainants requested hearings before an
EEOC AJ. Following a consolidated hearing, the AJ issued a decision
finding no discrimination, which the agency fully implemented.
Under written agency policy, locally developed training opportunities for
which participants have not been identified through mandatory standards,
needs assessments, or other means at the FCI are formally announced with a
15 day application opportunity. Record statements and testimony indicated
that it was unusual for voluntary training opportunities targeted for
Fort Worth FCI employees not to be formally announced.
The CDL training was not announced as above because it was belatedly
offered to the Bureau of Prisons by the U.S. Marshal's Service, i.e., it
was not locally developed and their was insufficient time to announce.
Two managers at the Fort Worth FCI were informed of this training
opportunity via email four days before the deadline to nominate names.
The complainants' second line supervisor, a Captain (white/Native American
Indian) did not open the above email until about two days before the
deadline because he was in training. By the time he started searching
for a nominee, he only had a day to submit a name.
The Captain explained that with so little time to find a name, he
walked around some of the facility and approached correctional officer 1
(Anglo-Saxon white) because he previously told him that he was interested
in CDL training. Correctional officer 1 accepted the training nomination,
and received the training. The Captain testified that he also offered to
nominate correctional officer 2 (Hispanic). According to the Captain,
had he known the complainants were interested, he would have asked them
if they wanted the training. The complainants did not previously inform
the Captain that they were interested in CDL training.
In finding no discrimination, the AJ noted that the complainants did
not previously express an interest with the Captain in CDL training.
The AJ also found that there was no evidence the Captain only solicited
white employees for training, crediting his testimony that he asked
correctional officer 2. The AJ credited the Captain's testimony that
with so little time to submit a name, it was not practical for him to
canvass all his correctional officers by email or in person because they
would not all be on duty. The Captain also testified that not everyone
opens their emails immediately.
On appeal, complainants argue that the Captain gave false testimony.
They argue that the Captain did not ask correctional officer 2 if he
wanted to attend CDL training. They submit an email from correctional
officer 2 that he was not asked if he wanted to go to CDL training.
The email was generated months after the hearing.
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.
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, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
The agency explained that it nominated and hence effectively chose
correctional officer 1 for the training because he previously expressed
an interest in CDL training to the Captain, and there was little time
to make a broad search.
Complainants argue that the Captain's explanation for his actions
should not be credited, and submit a post-hearing email by correctional
officer 2 to impeach it. In an investigative affidavit long prior
to the hearing, the Captain stated he asked correctional officer 2
if he wanted the CDL training, and he responded that he could not go.
Report of Investigation for Baker, Exh. 10. He made a similar statement
in an investigative affidavit in the Burns case. At the commencement
of the hearing the AJ made rulings on which witnesses were approved to
testify, and the complainants did not object to correctional officer 2
not testifying, nor later request him to testify during the hearing to
impeach the testimony of the Captain. We defer to the AJ's crediting
of the Captain's testimony. Complainants also contended that there was
discrimination because the Captain's immediate circle was all white,
so his in person method for soliciting training led to a discriminatory
result. The AJ, however, credited the Captain's testimony that he asked
a Hispanic correctional officer if he wanted the CDL training. Also,
the Captain testified that he would have asked the complainants if they
expressed an interest in the CDL training before. Moreover, we note that
the record reflects it is unusual for such training opportunities not
to be formally announced in writing to all eligible employees. This is
not a case of a potentially discriminatory practice since such training
is usually announced in writing. The AJ's finding of no discrimination
is supported by substantial evidence in the record.
Accordingly, the agency's final order implementing the AJ's decision
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 24, 2009
__________________
Date
1 The appeal, hearing, and agency numbers for Dairy Burns are,
respectively, 0120091462, 450200800351X, and BOP20080018. The appeal,
hearing and agency numbers for Robert Baker are, respectively, 0120091481,
450200900024X, and BOP20070623.
2 Complainants prematurely filed their appeals. Their appeals were
pending when the agency issued two separate final orders implementing
the consolidated EEOC Administrative Judge (AJ) decision finding no
discrimination. We find the appeals were perfected when the final orders
were issued.
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0120091481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091462 & 0120091481