[Redacted], Cruz M., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2020005416 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cruz M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020005416 Hearing No. 470-2016-00088X Agency No. BOP-2015-01503 DECISION On September 24, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 25, 2020, 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, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Materials Handler Supervisor (Warehouse Handler Supervisor), WS-6907-04, at the United States Penitentiary (USP) Hazelton in Bruceton Mills, West Virginia. On April 3, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Black/African American) when on February 11, 2015, he was notified that he was not selected as a Laundry Machine Operator Foreman, WS-7305-04, at 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. 2020005416 2 Federal Correctional Institution (FCI) Elkton in Elkton, Ohio, advertised under vacancy announcement number: ELK-2015-0006. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. However, on October 10, 2018, the Agency filed a motion for a decision without a hearing based on Complainant’s failure to establish a prima facie case of discrimination. See Agency’s Motion for Decision Without a Hearing. The Agency argued, in relevant part, that the Trust Fund Supervisor was not aware of Complainant’s race when he reviewed the candidates and conducted reference checks. Id. at 20. The Agency emphasized that Complainant’s qualifications were not plainly superior to those of the selectee given that the selectee had prior detail experience as a Laundry Machine Operator Foreman. Id. at 34. Complainant filed an opposition to the Agency’s motion, on October 25, 2018, arguing there were sufficient genuine issues of material fact in dispute to require a hearing. Specifically, Complainant asserted that the parties disputed whether: 1) the selectee possessed the experience and knowledge required for the position at issue; 2) Complainant had experience and knowledge directly related to the position that the selectee did not have; 3) the Trust Fund Supervisor falsified the vouchering/reference check for Complainant; 4) the Trust Fund Supervisor included information on Complainant’s reference check that was not expressed by Complainant’s supervisor; 5) the Trust Fund Supervisor knew of Complainant’s race prior to completing the reference check; and 6) Complainant’s experience activating the Commissary, doing the set-up and initial application of the centralized laundry plant operations, and extensive experience working in the laundry made him better qualified for the position at issue than the selectee. See Complainant’s Opposition at 8-9. Complainant emphasized that the Trust Fund Supervisor knew who he was because the Trust Fund Supervisor told the Electronics Technician at FCI Elkton that he heard that Complainant “was a piece of shit” for filing several grievances. See Complainant’s Opposition at 8. Complainant further emphasized that the Materials Handler Supervisor at FCI Elkton had informed the Trust Fund Supervisor that “Complainant was African American and that more minorities were needed in Elkton.” Id. Given these factors, Complainant maintained that “[t]his case should move forward to hearing because there exist genuine issues of credibility” with regard to the Agency’s articulated reasons. Id. at 9. On November 2, 2018, the Agency filed a reply to Complainant’s opposition. Therein, the Agency reiterated that the Trust Fund Supervisor was unaware of Complainant’s race during the selection process. The Agency took exception to Complainant’s assertion that the Materials Handler Supervisor had informed the Trust Fund Supervisor that “Complainant was African American and that more minorities were needed in Elkton.” The Agency emphasized that Complainant’s attorney simply “cited an email response that she herself provided” and “did not cite to or present any credible evidence in the record or sworn statement from [the Materials Handler Supervisor] to support this assertion.” See Agency’s Reply Brief in Support of its 2020005416 3 Motion for Decision Without a Hearing at 3. The Agency maintained that “the nature of the so- called evidence cited by the Complainant is utterly striking given that [the Materials Handler Supervisor] provided an affidavit in the ROI in which he did not mention speaking to [the Trust Fund Supervisor] about Complainant’s race.” Id. Based on the forgoing reasons, the Agency argued the issuance of a decision without a hearing was appropriate. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing. On July 17, 2020, the AJ issued a decision without a hearing. In finding in favor of the Agency, the AJ reasoned that Complainant’s qualifications were not demonstrably superior to that of the selectee, and that there were no genuine issues of fact or credibility in dispute to preclude the issuance of a decision without a hearing. 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. This appeal followed. On appeal, Complainant largely reiterates his prior contentions and emphasizes his years of laundry experience compared to the selectee. He maintains that the statements from the Electronics Technician and Materials Handler Supervisor clearly establish that the Trust Fund Supervisor was aware of his race during the selection process. The Agency opposes Complainant’s appeal and requests that the Commission affirm its final order. 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). In order 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. Upon careful review of the AJ’s decision and the evidence of record, we find that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2020005416 4 In reaching this conclusion, we acknowledge that Complainant’s experience in laundry operations appears to exceed that of the selectee.2 We also acknowledge that the Trust Fund Supervisor may have misrepresented the reference from Complainant’s supervisor.3 However, we ultimately conclude that the AJ’s issuance of a decision without a hearing was proper because Complainant failed to persuasively show the existence of a dispute concerning the dispositive material fact, i.e., that the Trust Fund Supervisor was aware of his race during the selection process. During the hearing process, Complainant himself admitted that he had never met or spoken to the Trust Fund Supervisor and had no personal knowledge as to whether the Trust Fund Supervisor was aware of his race during the selection process. See Complainant’s interrogatories contained in Agency’s Motion for a Decision Without a Hearing at 44-45. We also find that the statements made by the Electronics Technician and Materials Handler Supervisor, when weighed with the totality of the record, are insufficient to establish such a dispute. Therefore, we find that Complainant has failed to prove, by a preponderance of the evidence, that he was not selected for the Laundry Machine Operator Foreman because of his race. The Agency’s final decision is AFFIRMED. 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. 2 Our review of the record shows that Complainant has continually performed laundry duties on a rotational basis since 2007 in his role as a Materials Handler Supervisor at USP Hazelton. ROI at 114-17. In contrast, the selectee was a career Correctional Officer who, with the exception of a nine-month period in 2003, has almost exclusively performed correctional duties at FCI Elkton. Id. at 122-24. During that nine-month period, the selectee served a detail as a Materials Handler Supervisor (i.e., Complainant’s full-time job) under the Trust Fund Supervisor. Id. 3 The Trust Fund Supervisor wrote in Complainant’s reference check that Complainant’s supervisor reported Complainant had no laundry experience. ROI at 121. In fact, Complainant’s supervisor commented that Complainant had substantial laundry experience and had assisted with setting up the centralized laundry at the facility. Id. at 63. 2020005416 5 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. 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. 2020005416 6 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 April 11, 2022 Date