0120172570
08-23-2018
Levi S.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Levi S.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120172570
Hearing No. 440201500042X
Agency No. BOP20140660
DECISION
Complainant timely appealed, pursuant to 29 C.F.R. � 1614.403, from the Agency's July 21, 2017 Final Order concerning an 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Supervisory Contract Specialist at the Metropolitan Correctional Complex ("MCC Chicago") in Chicago, Illinois.
On June 10, 2014, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African-American), sex (male), and reprisal (prior protected activity) when:
He was notified that he was not selected for the Business Administrator position at MCC Chicago, Vacancy Announcement No. NCR140075.
After investigating his complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing.
In August 2014, Complainant was notified that his non-selection claim would be held in abeyance, as it met the criteria to be included as a class member in a pending class complaint.2 At the time, the matter was pending review by this Commission.3 The AJ for the instant case determined it was appropriate to proceed anyway. On March 20, 2015, the Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency on April 18, 2017.
A review of the record provides the following undisputed facts:
In December 2013, the Business Administrator, Complainant's former first level supervisor, retired. Afterward, Complainant was temporarily reassigned to the Business Administrator position by his second level supervisor, the Associate Warden ("A1") (black, male) who oversaw the MCC Chicago Financial Management, or "Business Office," and his third level supervisor, the MCC Chicago Warden ("W1") (white, male). A1 and W1 were aware of Complainant's race, sex, and prior protected activity, which concerned an EEO Complaint he filed in April 2013. A1 and the former Business Administrator were the responding management officials in the complaint. W1 became aware of the matter in December 2013, when he was asked to provide interrogatory testimony by the assigned EEO investigator.
On February 3, 2014, the Agency posted the vacancy announcement for a Business Administrator at its MCC Chicago location. The Business Administrator was responsible for:
Budget formulation and execution, financial management, management of procurement and property functions, oversight of credit card program, and serves as the liaison for financial matters with management and executive staff. Responsible for operation and maintenance of an integrated system of financial services that include budget, accounting, financial reporting and procurement. Responsible for exercising effective control over the financial resources.
The selectee would report to A1. Complainant, who was still temporarily assigned to the position, applied, and was among four candidates placed on the "Best Qualified" list. W1 tasked A1 and the other Associate Warden ("A2"), with vetting the applications of the "Best Qualified" candidates. A2 was outside Complainant's chain of command, and while he was aware of Complainant's sex and race, did not know about his prior EEO activity.
Once A1 and A2 vetted the candidates, W1 reviewed their applications for skills and experience relevant to the Business Administrator position and selected his first-choice candidate ("C1") (white, male). W1 forwarded the list and recommendation to hire C1 to the Regional Director ("RD") (white, male). In reaching a decision, RD discussed the applications, including Complainant's, with W1 and the Assistant Director for the Administration Division. RD did not know Complainant, but assumed Complainant was male based on his name. RD states in the record that he was unaware of Complainant's race or prior protected activity.
C1 was selected for the Business Administrator position. RD stated the selection was "based on the budget and accounting experience [C1] had in the prior two positions he held, his experience in supervising eight direct reports, and his experience at two other duty locations, one of which was a Complex." Conversely, RD states in the record that Complainant had "limited experience with the budget and accounting responsibilities required of the position, his supervisory experience was limited to the supervision of one direct report, and all of his experience was at MCC Chicago." While RD noted Complainant had been serving as the Business Administrator, he reasoned that Complainant did so "in a limited temporary capacity... [and has not been held] fully accountable for the responsibilities of the position."
The Agency issued its Final Order adopting the AJ's finding that Complainant failed to prove discrimination as alleged. The instant appeal followed.
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 rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's Final Order adopting them, de novo. See 29 C.F.R. � 1614.405(a)(stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review..."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, � VI.B. (as revised, August 5, 2015)(providing that an administrative judge's determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo).
Reprisal
On appeal, Complainant argues that the AJ erred by issuing a decision on the merits of his complaint, as it has already been identified and placed in abeyance as part of a pending class complaint. See Turner v. Dep't of Justice, supra. In its appellate response, the Agency agreed with respect to Complainant's reprisal claim only. Given that the certified class is limited to claims of "retaliatory denial of promotions based on prior EEO activity," it is appropriate to reverse the AJ's decision regarding Complainant's reprisal claim, so the matter can be considered as part of the class complaint.4
Therefore, our analysis on the merits of Complainant's complaint only considers Complainant's allegations of sex and race discrimination. This decision is not to be construed as a finding applicable to Complainant's reprisal claim, to be held in abeyance.
Sex and Race
To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus.
As a preliminary matter, Complainant has not established discriminatory motivation based on sex -- a threshold requirement for a prima facie case. C1 and Complainant are members of the same protected class, as they are both male. The selecting official, RD, was aware that Complainant and C1 were both male at the time of the selection. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
On appeal, Complainant argues that questions of law (credibility findings outside of a hearing) and fact exist concerning the Agency's alleged discriminatory motivation based on race. Specifically, whether RD, who was unaware of Complainant's race (as opposed to W1, A1, and A2), was truly the decisionmaker for C1's selection. However, Complainant does not overcome summary judgement because the Agency provided a legitimate nondiscriminatory reason for its action. A hearing is not warranted unless Complainant can show Agency's proffered reason was pretext for discrimination.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary's Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As this is a non-selection case, pretext may be found where the complainant's qualifications are demonstrably superior to the selectee's. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). However, as an employer, the Agency is entitled to make its own business judgments. Absent evidence of discriminatory animus toward complainant, the Commission will not second guess the agency's business judgment in these matters. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bailar, (Agencies have "broad discretion" to determine how best to manage their operations, and it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility). Additionally, an employer has greater discretion when filling management level or specialized positions. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987). Here, this greater level of discretion applies, as the Business Administrator position encompasses supervising three direct reports and extensive budget and financial oversight responsibilities.
The Agency's legitimate nondiscriminatory reasons for selecting C1 over Complainant concern C1's stronger background as a supervisor and holding budget and accounting responsibilities, in multiple offices. This is reflected in C1 and Complainant's resumes. These considerations are also related to the major requirements of the position.
Assuming arguendo Complainant can establish a prima facie case, Complainant's appellate arguments focus on matters that do not dispute or demonstrate that the stated rationale for Complainant's non-selection is pretext for discrimination based on race. Therefore, Complainant has not raised a question of material fact to overcome summary judgment.
CONCLUSION
Accordingly, the Agency's Final Order adopting the AJ's determination that Complainant did not establish discrimination as alleged is AFFIRMED with respect to Complainant's claims of discrimination on the bases of race and sex, and VACATED with respect to Complainant's claim of reprisal.
Complainant's reprisal claim is hereby REMANDED to the Agency for further action in accordance with this Decision and the following Order.
ORDER (C0618)
The Agency is ordered to take the following remedial action:
Within fifteen (15) calendar days of the date of this decision, the Agency shall issue a written notice to Complainant that its final order relating to his retaliation claim has been vacated in accordance with this decision, and that the claim is being held in abeyance pending the outcome of the Turner (EEOC Hearing No. 541-2016-00016X) class complaint.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
Under 29 C.F.R. � 1614.405(c) and �1614.502, compliance with the Commission's corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. � 1614.403(g). The Agency's final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
August 23, 2018
__________________
Date
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 Turner v. Dep't of Justice, EEOC Hearing No. 541200800255X (Sept. 30, 2010) (AJ granted class certification to "all Agency employees nationwide from January 1, 1994 to the present who have been denied promotions based upon the Agency's policy or practice of retaliating against employees because they engaged in Title VII EEO activity;" and ordered the Agency to "identify all pending complaints that raise the same issue as identified in the class, and hold them in abeyance.") Agency Nos. P20040296, P20000138;
3 Turner v. Dep't of Justice, EEOC Appeal No. 0720110008 (Sept. 15, 2015), reconsideration denied, EEOC Request No. 0520160037 (Feb. 11, 2016) (dismissing Agency's rejection and appeal of class certification, and upholding the AJ's Sept. 30, 2010, certification and order.)
4 As of this decision, the class complaint is still pending under EEOC Hearing No. 541201600016X.
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