Leif S.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionDec 14, 20180120172016 (E.E.O.C. Dec. 14, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leif S.,1 Complainant, v. Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120172016 Agency No. BOP-2015-0145 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated April 28, 2017, finding no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer Specialist, GS-8, at the Agency’s Federal Correctional Complex (FCC) in Beaumont, Texas. On January 27, 2015, Complainant filed his complaint alleging discrimination based on race (Caucasian) and color (white) when on October 14, 2014, he was not referred to the selecting official for a Lock and Security Specialist (Assistant Lock Smith) position, Vacancy Announcement No. BMA-2014-0047. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency thus issued 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. 0120172016 2 its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. ANALYSIS AND FINDINGS 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 (EEO MD-110), Chap. 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"). After a review of the record, assuming arguendo that Complainant had established a prima facie case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged nonselection. At the time of the event, Complainant was a GS-8, Senior Officer Specialist. He applied for the Lock and Security (LS) Specialist, GL-9, via online USA Jobs in September 2014. On October 4, 2014, Complainant received an email from a Human Resource (HR) Specialist that he was not considered for the position due to his lack of experience and/or education. Complainant claimed that he had at least one year of qualifying experience; he had over 2,080 hours (one year) of experience in the lock shop. Specifically, he indicated that he was selected as an alternative LS Specialist in May 2012; he had been a Disturbance Control Instructor since 1999; a member of the Specialist Operations Response Team in 2006; and he had experience with weapons and other emergency equipment. The HR Specialist indicated that based on his application, she determined that Complainant failed to meet the minimum education and/or experience qualification to be considered for the position at issue. To meet the education qualification, applicants were required to provide their transcripts showing they had Master’s degree or two full years of progressively higher level graduate education leading to such a degree. Complainant did not submit his transcripts as required and thus he failed to meet the education qualification. Regarding his experience qualification, Complainant had been a Correctional Officer since March 1997, which did not demonstrate one year of specialized experience for the position. The HR Specialist stated that Complainant’s assignment as an alternative LS Specialist since May 2012, entitled him only 20% credit for the time he performed toward the specialized experience for the position at issue. Thus, his performance as an alternative LS Specialist since May 2012, to August 2014, i.e., the closing date for the position at issue, entitled him 5.6 months (and not one year) of the specialized experience for the position. Qualifying specialized experience for the position at issue included experience repairing and maintaining various types of firearms, 0120172016 3 weapons, locks, locking systems, emergency entry equipment, riot control equipment, and chemical munitions. The HR Specialist indicated that Complainant was not qualified for the position at issue since he failed to meet the education and/or experience qualification under the vacancy announcement. His name thus was not forwarded to the selecting official who selected a selectee, who was listed on the best qualified list with one year of specialized experience. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances regarding his not meeting the position qualifications. Even if the HR Specialist made a mistake in calculating Complainant’s education and/or experience (and we do not find that the HR Specialist made any mistake), there is no indication that such a mistake was based on discrimination rather than simply an error. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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 0120172016 4 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. 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). 0120172016 5 FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 14, 2018 Date Copy with citationCopy as parenthetical citation