[Redacted], Allen L., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionOct 25, 2021Appeal No. 2021003004 (E.E.O.C. Oct. 25, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allen L.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003004 Hearing No. 560-2019-00333X Agency No. BOP-2018-0574 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s March 23, 2021, final order 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. For the following reasons, the Agency’s final order is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed as a Lieutenant at the Agency’s Federal Correctional Institution (FCI) Greenville located in Greenville, Illinois. Complainant’s first-level supervisor was S1, and his third-level supervisor was the Warden, S3. On June 6, 2018, Complainant filed an EEO complaint, which was later amended, alleging discrimination based on reprisal (prior EEO activity) when: 1) on April 9, 2018, he was not selected for the collateral duty position of Team Leader for the Crisis Support Team; 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. 2021003004 2 2) on August 24, 2018, he was forced to resign from his position on the local Crisis Support Team (CST). After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. 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. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On March 30, 2018, CW1 resigned from the position of CST Team Leader. She was a Budget Analyst and was already in place before S3 arrived at FCI Greenville. Complainant maintains that at some point after a November 2017 CST training, he and CW1 had a conversation, during which she agreed that Complainant would take over the team and that she would submit a memorandum, resigning as the CST Team Leader. In an email dated March 22, 2018, from Complainant to CW1, Complainant stated that after their November 2017 training, CW1 “informed [him] that [she] would be stepping down as the team leader, [he] would take over and [she] would be turning in [her] memo to [S1] the following day. So, [he] assumed [she] kept [her] word and turned the memo in.” Complainant maintained that when a new team leader was needed, if the team agreed who the leader should be, the team or a team member would inform S1 who the team had decided would take over. Otherwise, S1 would select the team leader. On April 3, 2018, Complainant sent an email to S1, in which he stated, “I stepped into the role of CST Team Leader in November after I spoke with CW1,” and “I would like to continue as the CST Team Leader.” Complainant maintained that being a member of CST looks great on a resume when applying for promotions or other jobs; and allows for direct interactions with staff and networking with other CST members across the nation. S1 denied having any role in the selection of the CST Team Leader position. He might offer advice, but the Warden makes the selection. S1 described Complainant as having “self- appointed” himself to the role. The AJ noted S1’s statement that the process for selecting a CST Team Leader was to make an announcement for the position, after which, the Warden selected an individual. The AJ also noted Section 601 of the Agency’s Correctional Services Manual, which stated, in relevant part, that the CST “typically consists of a Family Support Center Manager, a Psychologist, and the Chaplain,” and that “[t]he Warden should select one of these individuals as the CST Team Leader.” ROI, p. 254. The record contains no other qualifications for the CST Team Leader position. Complainant, the AJ, noted, acknowledged that “[t]here is no specific qualification requirement for the Team Leader.” S2 stated that he did not appoint Complainant to act as CST Team Leader and was unaware of any management official who had appointed him to that position. 2021003004 3 Although the record contains memorandums prepared by Complainant for S3, in which Complainant indicated his title as “Lieutenant/CST Team Leader” or “FCI Greenville CST Team Leader,” S3 maintained the position was vacant and that he contacted the Chaplain and the CST Psychologist, A1, to determine whether they were interested in the CST Team Leader position. The Chaplain stated that he was not interested, but A1 indicated that he was interested in assuming the role. A1 submitted a memorandum to S3 on April 4, 2018, “regarding [his] interest in the position of Team Leader of the CST.” S3 selected A1 for the position. S3 announced A1 as the selectee by emails on April 6, 2018, and April 9, 2018. When asked why he did not select Complainant, S3 stated, that Complainant was not a Chaplin, Psychologist, or the Family Support Manager. Complainant initiated contact with an EEO Counselor and sent an email to A1 indicating that “[he will] be resigning from the CST in the immediate future.” Also, on April 10, 2018, he announced his resignation from the CST during a CST training session. On May 23, 2018, the EEO Counselor interviewed S3 about Complainant’s nonselection as the CST Team Leader. On June 6, 2018, Complainant filed his formal EEO complaint. On August 22, 2018, Complainant stated that S1 told him that S3 did not want him to have anything else to do with the CST because S3 was upset that Complainant taught a CST class on August 2, 2018, from 12:00 p.m. to 4:00 p.m., and because Complainant sent an email on August 21, 2018, to all CST members, and copied the Executive staff, informing the team of the importance of keeping accountability of all CST’s equipment at the training center and in the camper assigned to the CST. S1 denied Complainant’s assertion that he was forced to resign. He maintained that Complainant was told to stop acting as though he were the team leader, but that he chose to resign from the team. The AJ found that S3 selected A1 as the CST Team Leader because he was a Psychologist and, pursuant to the Agency’s Correctional Services Manual, the CST Team Leader should be the Family Support Center Manager, the Psychologist, or the Chaplain. S3 indicated that the Family Support Center Manager position was vacant, the Chaplain was not interested in being the CST Team Leader; therefore, he selected A1, over Complainant, who did not meet any of the criteria. Additionally, the AJ found that Complainant was told, on or around August 22, 2018, to stop acting as though he was the CST Team Leader because he did not hold that position. The Agency denied that Complainant was told not to have contact with the CST. The AJ, however, focused on the undisputed fact that more than four months earlier, on April 9, 2018, Complainant announced that he would be resigning from the CST in the “immediate future.” Thus, the AJ found that Complainant’s subsequent resignation in August 2018, finalized his proposed action of April 9, 2018 to resign, and that the purported August 22, 2018 statement by S3 did not force Complainant to resign. 2021003004 4 Finally, the AJ found that Complainant did not establish that there was a genuine issue of material fact in dispute with respect to pretext. Specifically, the AJ noted Complainant’s assertion that CW1 was the Team Leader, but she was a Budget Analyst and that several other team leaders across the United States were not Chaplains, Psychologists, or Family Support Center Managers. The AJ noted, however, that S3 was not the selecting official who placed CW1 in the team leader position; CW1 was already in the role when he took over the facility. Moreover, S3 played no role in the selection decisions that took place in other facilities across the nation. With respect to Complainant’s contention that CW1 stepped down in November 2017, and agreed to Complainant replacing her, the AJ noted a March 22, 2018 email exchange between Complainant and CW1 where she stated, “Last time I check[ed] . . . I was still the team leader at FCI . . . unless someone demoted me and didn’t tell me.”2 The AJ also noted the fact that CW1 had no authority to appoint her successor, as this was a function reserved for the Warden. Even assuming, arguendo, that the practice was as Complainant contended that when a new team leader needed to be appointed (if the team agreed who the leader should be, the team or a team member would inform S1 who the team had decided to have takeover, otherwise, S1 would select the team leader), the AJ found the record devoid of any evidence that the CST agreed that Complainant would be the new team leader. 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). 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. 2 When Complainant reminded CW1 of their earlier conversation in November 2017, she wrote, “[w]e did have a conversation about it. But if my memory serves me right[,] I said I was thinking about stepping down. But since it appears that it is a completed deal[,] I will gladly give you the title.” 2021003004 5 Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. 3 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 3 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Complainant v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2021003004 6 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003004 7 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 October 25, 2021 Date Copy with citationCopy as parenthetical citation