Edie R.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

2019001293 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edie R.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019001293 Agency No. BOP-2016-00886 DECISION On December 12, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 24, 2018 final decision 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 Case Management Coordinator at the Agency’s Federal Correctional Institute, Estill facility (“FCI Estill”) in Estill, South Carolina. On September 27, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American), sex (female), and in reprisal for prior EEO activity when: 1. Agency management did not promote her to positions she sought as an Executive Assistant, Witness Security Specialist or Camp Administrator; 2. her supervisor did not rate her as “Outstanding” in her performance evaluation; and 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. 2019001293 2 3. Agency management did not give her a retroactive quality step increase in pay when her rating was changed to “Outstanding.” After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 24, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANAYLSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more fully discussed below. Complainant has worked as a Case Management Coordinator, mostly handling correspondence about inmate transfers, releases, and court appearances. Regarding claim 1, Complainant alleged that Agency management did not promote her to positions she sought as an Executive Assistant, Witness Security Specialist or Camp Administrator. 2019001293 3 Executive Assistant position The Regional Director, Southeast Regional Office, Atlanta (Caucasian male, unknown prior EEO activity) stated that during the relevant period, he was the selecting official for the position of Correctional Programs Specialist (Executive Assistant). He explained that there were 32 applicants, including Complainant for the Executive Assistant position. The Regional Director stated that he asked the Warden, Federal Center, Oklahoma City to be the recommending official. Furthermore, the Regional Director stated that he concurred with the recommending official’s recommendation by choosing the selectee (Hispanic female) for the Executive Assistant position. Furthermore, the Regional Director stated that he did not discriminate against Complainant based on her race, sex, and prior EEO activity. The Warden, Federal Transfer Center, Oklahoma City stated that he was asked by the Regional Director to review the applicants’ resumes and “submitted my top three recommended applicants for selection in priority order. I did not reference-check any of the applicants.” The recommending official stated that he sought someone with the following skills and experience: administrative skills; proof reading skills; interpersonal skills in order to communicate effectively, both orally and in writing; planning and coordinating skills to oversee special projects and assignments; Employee and Labor Relations experience; and experience developing policy and negotiations. The recommending official stated that the selectee was the “number one” recommended for the Executive Assistant position because she possessed “many of the skills and experience I believed were important.” Specifically, the recommending official stated that the selectee’s employee and labor relations experience stood out, and that “FTC Oklahoma City has a very active and aggressive Union. I believed the selectee’s skills and experience would help my management team in developing more knowledgeable management officials while promoting a positive relationship with the local Union.” The recommending official noted that Complainant had “good experience, too. The Complainant’s resume reflected many of the same skills and experience as the selectee. However, the selectee possessed a Master’s degree versus the Complainant’s Bachelor’s degree. The selectee also described better employee and labor relations experience which I believe would be beneficial to the management team.” Moreover, the recommending official stated that Complainant’s race, sex, and prior EEO activity were not factors in his decision to recommend three applicants to the Regional Director. Complainant asserted that she was not selected for the Executive Assistant position because she had an “Exceeds” performance evaluation for 2015-2016. 2019001293 4 However, the recommending official stated that the Executive Assistant position announcement closed on March 31, 2016, which was the last day of the 2015-2016 performance rating period and he does not recall seeing “any reference to her 2015-2016 performance rating. However, I do recall seeing she indicated she received a Quality Step Increase in May 2015 in her resume. Consequently, I did not consider her performance rating for the 2015-2016 rating period.” Witness Security position The Assistant Director, Correctional Programs Division, Washington D.C. (African-American female, prior EEO activity) stated that she was the selecting official for the position of Correctional Programs Specialist (Witness Security). She further stated that she reviewed the applicants’ applications and completed reference checks. She was sought an applicant with “overall experience in Correctional Programs and inmate management.” The Assistant Director explained that after a thorough review, she chose the selectee (Caucasian female) for the Witness Security position because she “had an extensive background and experience in Correctional Programs, to include experience as a Case Management Coordinator, Case Manager, and Correctional Counselor.” The Assistant Director did not conduct interviews. With respect to Complainant’s allegation that she was not selected for the Witness Security position because she had an “Exceeds” performance evaluation for 2015-2016 period, the Assistant Director stated “I have no knowledge of [Complainant’s] evaluation ratings.” Moreover, the Assistant Director stated “I do not know [Complainant] and did not discriminate against her.” Camp Administrator position The Warden, FCC Coleman, Coleman, Florida stated that the Regional Director, Southeast Regional Office was the selecting official for the position of Correctional Institutional Administrator/Camp Administrator. He stated that while he reviewed the applicants’ application packages and the reference check forms, “the selection authority for supervisory positions is delegated to the Regional Director.” The Warden noted that the Regional Director selected the selectee (Hispanic male) for the Camp Administrator position. The Regional HR Administrator, Southwest Regional Office, Atlanta (Caucasian female, no prior EEO activity) explained her responsibilities as a Regional HR Administrator is to provide oversight on all aspects of personnel and training administration for seventeen correctional institutions within the Southeast Region and advise the Regional Director, Regional Administrators, Wardens, institution executive staff and HR Managers. Further, the Regional HR Administrator acknowledged that Complainant was referred for the Camp Administrator position. She noted that “records indicate that all applicants were reference-checked. The reference checking process involves asking a list of standardized questions, most of which are technical questions.” 2019001293 5 The Regional HR Administrator noted that the former Regional Director, Southeast Regional Office chose the selectee (Hispanic male) for the subject position.2 The Chief, Consolidated Staff Unit (“CSU”) (Caucasian male, unknown prior EEO activity) asserted that the Agency’s Merit Promotion Plan was followed on all three vacancy announcements and that the selections were made from a properly rated and ranked certificate issued by the CSU department. Furthermore, the Chief explained that CSU announces vacancies at the direction of the Selecting Official’s HR Office. He stated that CSU “accepts applications, validates eligibility and qualifications requirements for applicants within range for review, issues certificates to the Selecting Official and performs post-selection functions. The CSU is not directly involved with selection determinations.” Regarding claim 2, Complainant asserted that her supervisor did not rate her as “Outstanding” in her performance evaluation. Sometime during the spring of 2016, Complainant and her supervisor had a disagreement. Thereafter, on April 28, 2016, the supervisor gave Complainant a performance rating of “Excellent,” despite Complainant having received “Outstanding” performance evaluations for years. Complainant believed that she received the “Excellent” rating because the supervisor may have taken it personally against her when she did not agree with him. According to the supervisor, he acknowledged to Complainant that he was still upset with her when he prepared her performance appraisal. The supervisor later agreed to change Complainant’s rating from “Excellent” to “Outstanding.” The record reflects, however, the supervisor did not change her evaluation even though he agreed to do so on several occasions. The former Warden FCI Estill (Caucasian male, no prior EEO activity) acknowledged that Complainant expressed her concerns regarding her “Excellent” rating that the supervisor gave her. He addressed Complainant’s concerns by appointing the Executive Assistant as her rating official “in the absence of [supervisor] to expedite finalizing [Complainant’s] upgraded evaluation to an Outstanding.” Regarding claim 3, Complainant alleged that Agency management did not give her a retroactive quality step increase in pay when her rating was changed to “Outstanding.” The Human Resources (HR) Manager (Caucasian female, unknown prior EEO activity) explained that according to computer system, Complainant’s QSI went onto effect on September 18, 2016, and she received the increase on her Pay Period 20 check and the official pay day was October 27, 2016. She further stated that she did not know of any policy that would require a retroactive increase. 2 The record reflects that the former Regional Director retired from Agency employment, effective December 31, 2016. 2019001293 6 Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 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). 2019001293 7 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 January 28, 2020 Date