Dewey R.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.Download PDFEqual Employment Opportunity CommissionMay 20, 20160120142308 (E.E.O.C. May. 20, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dewey R.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice, Agency. Appeal No. 0120142308 Hearing No. 520-2014-00099X Agency No. P-2013-0338 DECISION Complainant filed an appeal from the Agency’s May 6, 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, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Material Handler Supervisor at the Agency’s work facility in Danbury, Connecticut. On March 19, 2013, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his sex (male) and age (47) when on January 18, 2013, he became aware that he was not selected for the Correctional Systems Officer position advertised in Vacancy Announcement Number DAN-2013-0002. 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. 0120142308 2 At the conclusion of the investigation, 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 timely requested a hearing. On February 19, 2014, the AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing. Complainant submitted a Motion and Memorandum in Opposition to Summary Judgment in favor of the Agency. The Agency submitted a Brief in Support of the AJ’s Intent to Issue Summary Judgment. Over Complainant's objections, the AJ issued a decision without a hearing on March 27, 2014. The AJ found that no discrimination occurred. The record reveals that during the relevant time period, the Danbury correctional facility had an all-female inmate population. Prior to the selection at issue, two Correctional Systems Officers, one female and one male transferred out of the Correctional Services Department, which is also known as Receiving and Discharge. The Agency decided to fill the slot vacated by the female Correctional Systems Officer. Complainant applied for the vacant Correctional Officer position and was not chosen. The selectee was a thirty-year old female who had been a Senior Officer Specialist, GL-8, in the Correctional Services Department at the Danbury facility from June 2010, to the time of her selection. The selectee previously had been an Activities Lieutenant, GS-9/5, from March 2010 – June 2010, and a Senior Officer Specialist from June 2009 – March 2010. The selectee stated on her application that as a Senior Officer Specialist, she was responsible for institution security, inmate conduct and discipline, control of contraband, safety, housekeeping and sanitation. The selectee further stated that as an Activities Lieutenant, she was certified as qualified and trained in the Central Inmate Monitoring System, a system that is used by Correctional Systems Officers in the Correctional Systems Department. Complainant’s qualifications included serving as a Deputy Sheriff from December 1994 – April 2002 in the Duchess County Sheriff’s Office. Complainant stated that he acquired extensive experience in performing all receiving and discharge functions while in that position. Complainant also had worked at the Danbury facility from April 2003 – December 2007, as a Senior Officer, GS-07 in the Correctional Services Department. Since December 2007, Complainant had served as a Material Handler Supervisor/Senior Officer, WS-04, at the Danbury institution’s warehouse. Complainant stated that this is the third time he has sought a Correctional Systems Officer position in the Correctional Services Department and not been selected. The AJ stated that the Warden made the selection and that she sought recommendations from the Supervisory Correctional Systems Specialist and the Case Management Coordinator. The AJ noted that the Warden stated that at the time of the selection, there were two women and four men assigned to the department. The Warden explained that only women are permitted to conduct a visual search on each inmate entering and departing the institution. According to the Warden, if a male had been selected for the position, this would have resulted in an undue burden on the female staff assigned to the department and an inequitable balance of work duties. The Warden stated that a monthly total of approximately 40+ new female inmates are transported to the institution by correctional officers by weekly airlifts; additional female 0120142308 3 inmates arrive unescorted after being sentenced by courts; and female inmates are released by the institution on a periodic basis. The AJ observed that both the Supervisory Correctional Systems Specialist and the Case Management Coordinator believed that a female was needed for the position. The Supervisory Correctional Systems Specialist explained that a female correctional facility and his department cannot function efficiently without female staff to strip and search inmates on a daily basis. With regard to the claim of sex discrimination, the AJ found that in this instance sex was a bona fide occupational qualification reasonably necessary to the normal operation of the correctional facility. The AJ stated that the position at issue requires stripped pat-downs of prison inmates at an all-female institution. The AJ noted that the privacy interests of prisoners are significantly impacted during such pat-downs and therefore the hiring of a male would have undermined such privacy interests. The AJ stated that these privacy interests are entitled to protection under the law. Further, the AJ found that the hiring of a female correctional officer was the least restrictive method in order to respect privacy rights. The AJ observed that the evidence showed that conducting strip searches of female prison inmates is a core responsibility of the position at issue. According to the AJ, there were a sufficient number of strip searches conducted so that this job duty could not be delegated to other female employees. The AJ noted that Complainant contended that since the female selectee replaced two vacancies, one that had been occupied by a male, then a male also could have filled this vacancy. The AJ pointed out, however, that in such a situation if one female employee was off for scheduled or unscheduled leave, the other female would have to conduct every strip search. The AJ rejected Complainant’s argument. As for the claim of age discrimination, the AJ found that Complainant established a prima facie case given that the selectee was younger than Complainant. The AJ stated that the Agency articulated a reason for Complainant’s nonselection, which Complainant did not show to be a pretext for age discrimination. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the bona fide occupational qualification should not have been applicable to this situation and that this matter is a genuine issue of material fact. Complainant argues that the Agency did not establish that two females in the Receiving & Discharge department were insufficient to achieve the responsibilities of strip searching and privacy. Complainant maintains that the Agency has not demonstrated that duties could not be reassigned from males to females within the department or reassigned to Correctional Officers outside the department. According to Complainant, given that vacancies arose from the transfers of a female employee and a male employee, the selecting official could have filled the position with either a male or female employee. Complainant notes that the Danbury facility has recently transitioned to an all-male institution. Complainant questions whether the 0120142308 4 selecting official was aware of this change in mission at the time of his nonselection. Complainant argues that another material fact in dispute concerns his qualifications in comparison to those of the selectee. Complainant states that he was on the “Exceptions†list and thus was in a non-competitive status above the selectee, who was on the Best Qualified list. In response, the Agency asserts that there would have been an undue burden placed on the two female staff members had a female not been selected for the relevant position. The Agency emphasizes that only women can perform the visual search of a female inmate entering or departing the institution. The Agency notes that the Supervisory Correction Systems Specialist explained that strip searches occur each day in the Inmate Correctional Systems Department because there are inmates coming back and forth for hospital visits, inmates arrive via airlifts and self-surrender inmates report for incarceration. The Agency states that this is the only department responsible for strip searching inmates coming into or leaving the institution. The Agency notes that inmates have a privacy interest in avoiding intrusive searches by the opposite sex. The Agency maintains that the AJ appropriately found that sex was a bona fide occupational qualification in the selection of a female given that a primary duty of the Correctional Systems Officer is to perform visual searches of inmates, and thus having available staff of the same sex is essential to carrying out the mission of the Agency and upholding inmate privacy concerns. According to the Agency, there was no less restrictive alternative to accomplish this core duty while maintaining inmate privacy interest. With respect to the qualifications issue raised by Complainant, the Agency asserts that there is no reference in the policy that the applicants on the noncompetitive list should be considered better qualified than the candidates on the best qualified list. The Agency further argues that when it raised a bona fide occupational qualification for selecting the female candidate, Complainant’s credentials were no longer a material fact in dispute that would affect the outcome of the case. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine†if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material†if it has the potential to affect the outcome of the case. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Section 703(e) of Title VII only permits classifications based on sex “where … sex… is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.†The Agency’s Receiving and Discharge Manual, PS 5800.12, provides that a “visual search,†i.e., strip search, “shall be routinely performed by officers of the same sex as the inmate.†On August 12, 2012, the Agency issued PS 5324.09, which established a Sexually Abusive Behavior Prevention and 0120142308 5 Intervention Program which provides in part that an Agency “facility shall not conduct cross- gender strip searches or cross-gender visual cavity searches …except in exigent circumstances or when performed by medical practitioners.†In this instance, the AJ found that the Agency established that a core function of the work done in the Receiving & Discharge department involved strip searches of female inmates. The Agency presented evidence that there were previously three female Correctional Systems Officers in the department but that one of the women transferred, thus leading to the selection at issue. The Agency established that filling this vacant position with a female Correctional Systems Officer was paramount given that strip searches occurred whenever inmates departed or returned to the prison and also when new prisoners arrived. The Agency explained that it would have been in a precarious position had it not hired a female candidate. The Agency pointed out that in a circumstance of only two female Correctional Systems Officers, it would be left additionally shorthanded when one of the two female Correctional Systems Officers would be on scheduled or unscheduled leave, or attending training. The Agency noted that other departments at the institution had been adversely impacted when it was necessary to borrow their female Correctional Officers to conduct strip searches. The AJ found that the Agency’s selection of a female candidate was the least restrictive method in order to protect female inmates’ privacy rights. We agree with the AJ that sex was a bona fide occupational qualification for the position at issue. The situation at this particular prison necessitated the hiring of a female for the Correctional Systems Officer position. There were a sufficient number of strip searches conducted to establish that this job duty was a core responsibility of the position, and could not be delegated to other female employees. Previously, the Commission found in Mirzayan v. Department of Homeland Security, EEOC Appeal No. 0120040649 (January 23, 2007), that a policy that resulted in female Customs Inspectors performing overtime and otherwise adjusting their schedules to allow female inspectors to pat down female passengers is a bona fide occupational qualification. Similarly, the privacy interests at stake here for female inmates required that a sufficient number of female Correctional Systems Officers be available to conduct strip searches. Therefore, we find that the Agency did not engage in discrimination based on sex when it considered sex as a factor in its selection decision. 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). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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. 0120142308 6 Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). With respect to Complainant’s claim of age discrimination, Complainant has set forth a prima facie case. The record reveals that Complainant was 47 years old at the time of the selection and the selectee was outside his protected group as she was 30 years old. The Agency explained that its choice of the selectee was largely dictated by its need for a female Correctional Systems Officer to conduct strip searches of the female inmates. As previously stated, we find that this was a bona fide occupational qualification and that the Agency therefore articulated a legitimate, nondiscriminatory reason for its selection. Complainant argues that he was more qualified for the position than the selectee based on his experience. Complainant also suggests that a pattern of age discrimination has been in effect given that his two previous nonselections for this position were in favor of two younger candidates. We find that the record clearly discloses that age was not a factor in the selection at issue. Complainant has not refuted the Agency’s explanation that its need for a female Correctional Systems Officer was dispositive in its selection decision. CONCLUSION The Agency’s determination that no discrimination occurred 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. 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 0120142308 7 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 May 20, 2016 Date Copy with citationCopy as parenthetical citation