Derrick T.,1 Complainant,v.Matthew Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120171412 (E.E.O.C. Nov. 21, 2018)

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

Derrick T.,1
Complainant,

v.

Matthew Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120171412

Hearing No. 451-2016-00104X

Agency No. BOP-2014-0254

DECISION

On March 9, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 3, 2017,2 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency discriminated against Complainant based on his national origin, color, and
disability when it did not select him for the position of a Trust Fund Specialist.

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 Complainant states that he received the Agency’s final decision on February 21, 2017.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer
at the Agency’s Federal Correctional Institute La Tuna in El Paso, Texas.

On February 10, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (black Hispanic),3 national origin
(Panamanian/Mexican), color (Brown), disability (unspecified), and in reprisal for prior protected
EEO activity under Title VII, when it did not select him for the position of Trust Fund Specialist
on December 12, 2013. The Agency accepted the claim for investigation, and noted that
Complainant’s allegations that he was discriminated against when he was passed over for
promotion on twenty-two (22) other occasions would be considered as background evidence.

On March 31, 2014, the Agency informed Complainant that his reprisal claim was held in abeyance
because it was subsumed with a pending class action, Turner, et al. v. Department of Justice, EEOC
No. 541-2008-0255X. ROI at pgs. 42-49. The Agency stated that Complainant’s allegation of
discrimination based on his national origin, color, and disability would be investigated.
Complainant appealed the Agency’s decision on his reprisal claim. The Commission determined
that the Agency correctly held Complainant’s reprisal claim in abeyance, and affirmed the
Agency’s decision. EEOC Appeal No. 0120141969 (Nov. 28, 2014).

On or about July 29, 2014, the Agency completed the investigation, and the Agency provided
Complainant with a copy of the report of investigation (ROI), and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). When the Agency did not receive notice from
Complainant, it initiated a final decision on November 24, 2015. On January 11, 2016, the Agency
learned that Complainant requested a hearing on January 4, 2016. The original AJ (AJ1) scheduled
an initial status conference for April 28, 2016. Complainant filed a Motion to Amend on May 18,
2016, and the Agency filed its response on June 8, 2016. On June 9, 2017, the second AJ (AJ2)
assigned to the hearing request issued an Order Retracting Scheduling Order and Order Canceling
All Docket Settings to close the matter because she determined that the Agency issued a final
decision, which Complainant appealed.

In its final decision, the Agency determined that Complainant did not provide sufficient evidence
to establish that he was an individual with a disability because he only asserted that the Department
of Veterans Affairs stated that he had a “medical disability,” without elaborating on his disability,
or how it affected any major life activity. The Agency did not discuss Complainant’s prima facie
case of discrimination based on his color or national origin, but found that the management
officials provided legitimate, nondiscriminatory reasons for not selecting Complainant.

3 Although Complainant alleged discrimination on the basis of race (black Hispanic), the
Commission notes that it considers the term “Hispanic” to be a national origin, rather than a racial
group.
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Complainant alleged that the selecting official (SO) referred to Complainant as “scrap,” which she
denied. SO also stated that the selectee was the best qualified person for the position. A Human
Resources Manager (HRM) stated that Complainant’s years of Agency experience and knowledge
of its computer systems were not criteria used for rating the qualifications for this position. The
Agency noted that Complainant had ten (10) years of experience as a Correctional Officer, six (6)
years as a Military Police Officer, and a Bachelor’s Degree in Economics. However, the selectee
had eight (8) years of Agency experience as a Material Handler Supervisor, which included
experience as the Acting Trust Fund Supervisor, and as a trainer for Trust Fund personnel. The
Agency determined that the selectee had at least the same, if not more, relevant experience as
Complainant, and that the record did not demonstrate that Complainant was subjected to
discrimination when he was not selected. The Agency also noted that Complainant’s claim that
the Agency violated federal hiring procedures by selecting a non-veteran over a 30% disabled
veteran are not within the purview of federal EEO laws.

Complainant filed the instant appeal, and submitted a statement in support of his appeal. The
Agency filed its opposition brief on May 5, 2017.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the Agency did not consider the entire record, which included
information related to the 20 prior applications for which Complainant was not selected.
Additionally, Complainant alleges that the investigation is incomplete because the Agency did not
produce interview documentation. Complainant asserts that his qualifications are superior to those
of the selectee.

Complainant also argues that the Agency did not address the conflicting evidence that SO called
him “scrap,” and gave other conflicting testimony. Specifically, SO stated that she does not know
Complainant, and does not speak with employees about positions that they are applying for, but
that the record shows that they met on April 26, 2013, at his request to discuss his future promotion
opportunities. Complainant also argues that the AJ never responded to his Motion to Amend.

The Agency argues that Complainant has not presented any evidence showing that he was better
qualified than the selectee. The Agency states that the fact that the selectee was found to be
qualified at a higher grade shows that he was more qualified than Complainant.

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ANALYSIS AND FINDINGS

Standard of Review

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (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”).

As an initial matter, we remind Complainant that AJ2 closed his hearing request on June 9, 2017.
Accordingly, there is no reason for an AJ to respond to his Motion to Amend. We note that
Complainant’s hearing request in January 2016 was untimely, and that the Agency properly issued
the FAD.

We find that the Agency did not accept for investigation Complainant’s discrimination claims on
the previous 22 non-selections, but noted them as background evidence. This appeal will not
address those allegations because the Commission cannot address an issue raised for the first time
on appeal. Complainant argued that he did not believe that he was discriminated against until he
was not selected for the Trust Fund position, and “began to reflect” back on his previous non-
selections. We note that EEOC regulations provide that the Agency or the Commission shall
extend the time limits when the individual shows that he was not notified of the time limits and
was not otherwise aware of them, that he did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal
Service, EEOC Request No. 01992093 (Nov. 29, 2000). We are not convinced that Complainant’s
argument that he only realized that he was discriminated against when he was not selected for the
Trust Fund Specialist position warrants an extension of the time limits for initiating an EEO
complaint for these prior non-selections.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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 Constr. Corp. v. Waters, 438 U.S. 567 (1978).
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Once Complainant has established a prima facie case, the burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back
to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his national origin, color, and disability, we find that the Agency proffered legitimate,
nondiscriminatory reasons for its action. SO stated that she did not interview the applicants, but
made the selection based on the Best Qualified List and the applicants’ resumes. ROI at pgs. 95-
96.

HRM explained that the selectee was deemed qualified at the GS-09 level, which meant that he
had more relevant experience than Complainant, who was found qualified at the GS-07 level.
HRM stated that Complainant was qualified based on his Economics degree, and the selectee was
qualified based on his years of relevant experience. HRM also stated that an applicant’s length of
service, interaction with Agency employees, or understanding of Agency computers were not
criteria used for this position. ROI at pg. 106. The Chief of the Staffing Unit stated that
Complainant was found to lack specialized experience, education, or a combination of both, to
qualify at the GS-09 level. ROI at pg. 227.

We find that Complainant has not shown that the reasons were pretext for discrimination. In a non-
selection case, pretext may be found where the complainant’s qualifications are plainly superior
to the qualifications of the selectee. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981);
Wasser v. Dep't of Labor, EEOC Request No. 05940058 (Nov. 2, 1995). Complainant argued that
he was more qualified than the selectee because he has been with the Agency longer; and has a
better understanding of the Agency’s computer systems and “institution programs.” ROI at pg. 65.
However, the record shows that the knowledge, skills, and abilities required for the position
include information management, financial management, planning, and evaluating. ROI at pg. 123.
The selectee’s resume shows that he has prior experience performing audits, reviewing budgets,
and resolving accounting issues. The selectee also obtained certifications in Financial
Management, Trust Fund Training, and Trust Fund Accounting and Commissary System, Special
Level I Warrant Purchase Card Program. ROI at pgs. 145-146. Complainant’s relevant experience
includes adjusting financial logs, maintaining profit and loss spreadsheets, and logging financial
transactions for new inmates. Complainant obtained a Bachelor’s degree in economics, which
included accounting, audits, and fund management. ROI at pgs. 150-151, 156. We find that while
Complainant was qualified for the position, he has not demonstrated that his qualifications were
plainly superior to the selectee’s qualifications.

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Complainant also argues that the conflicting evidence in the record shows that SO is not credible.
We acknowledge that the record contains an email showing that SO met with Complainant in April
2013, to discuss his career, which conflicts with her statement that she did not know him. However,
Complainant did not request a hearing within 30-days of receipt of the ROI, and his hearing request
was ultimately closed. Accordingly, we do not have the benefit of an AJ’s credibility determination
to weigh in on this issue, and Complainant’s allegation that SO called him “scrap.”

However, a showing that the employer’s articulated reasons are not credible permits, but does not
compel, a finding of discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
In this case, Complainant has not presented any evidence showing that the reason he was not
selected was due to his protected classes. The Commission has previously found that an Agency
has the discretion to choose among candidates whose qualifications are relatively equal as long as
the decision is not premised on an unlawful factor. Devance-Silas v. U.S. Postal Service, EEOC
Appeal No. 0120110338 (March 23, 2011), citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 252-259; Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985); Canham v.
Oberlin College, 555 F.2d 1057, 1061 (6th Cir. 1981). Further, we note that in the absence of
evidence of unlawful discrimination, the Commission will not second guess the Agency’s
assessment of the candidates’ qualifications. Burdine, at 259. Accordingly, we find that
Complainant has not proven pretext for discrimination, and that the Agency did not discriminate
against Complainant based on his national origin, color, or disability when it did not select him for
the Trust Fund Specialist position.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
was not discriminated against based on his national origin, color, or disability when it did not select
him for the position of Trust Fund Specialist.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s
request 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 agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). 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.

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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

November 21, 2018
Date