[Redacted], Eileen C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionJul 15, 2021Appeal No. 2021000771 (E.E.O.C. Jul. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eileen C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021000771 Hearing No. 520-2019-00412X Agency No. BOP-2016-0019 DECISION On November 10, 2020, the Agency filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a) from the decision of an Administrative Judge (AJ) dated September 30, 2020, concerning Complainant’s 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. In the decision, the AJ issued a summary judgment decision finding in Complainant’s favor and awarded Complainant $75,000 in nonpecuniary compensatory damages. On November 10, 2020, the Agency issued a final order in which it rejected the AJ’s decision and the relief ordered. For the following reasons, the Commission VACATES the Agency’s final order and REMANDS the matter for a hearing in accordance with the order below. BACKGROUND Complainant worked as a Staff Psychologist, GS-0180-12, at the Metropolitan Detention Center in Brooklyn, New York. On January 21, 2016, Complainant filed a formal EEO complaint. 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. 2021000771 2 Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Black) and national origin (Haitian) by not selecting her for the position of Drug Abuse Program Coordinator (DAPC). In accepting the complaint, the Agency framed the claim as follows: On November 10, 2015, you allege that you became aware that you were subjected to disparate treatment when [the Associate Warden, her second-level supervisor (S2)] did not fairly consider you for the position of [DPAC], vacancy announcement number NER-2015-0163 (VA1). Investigative Report (IR) 46. Following an investigation, Complainant requested a hearing before an EEOC AJ. The AJ originally assigned to the matter found that the Agency had improperly framed Complainant’s claim and ordered the Agency to conduct a supplemental investigation with the complaint reframed as follows: 1. Did the Agency discriminate against Complainant on the bases of race (Black) and national origin (Haitian) on or about July 2015 when it rescinded [VA1] and by rejecting specifically her application? 2. Did the Agency discriminate against Complainant on the bases of race (Black) and national origin (Haitian) on or about November 2015 when it disqualified her from being placed on the [best-qualified list] BQL [for vacancy announcement number NER-2016- 0050 (VA2)] and selecting someone outside her protected classes? Supplemental Investigative Report (SIR) 13. Upon completion of the supplemental investigation, Complainant again requested a hearing. The Agency filed a motion for summary judgment to which Complainant filed a response. Upon reviewing the submissions, the second AJ assigned to the matter issued a summary judgment decision in Complainant’s favor. The AJ found that the exact same position had been advertised under both vacancy announcements. In early 2015, Complainant applied for the DAPC position under VA1. Four candidates, including Complainant made the BQL. One candidate, a white female, was selected, but declined the position. Instead of offering the position to the other candidates on the BQL, the Agency rescinded the vacancy and re-advertised it six months later under VA2. The reason for doing so, according to the selecting official, was a limited applicant pool under VA1. Complainant reapplied for the position under VA2, but this time, Complainant did not make the BQL. Four candidates were referred to the selecting official who chose a white male for the position from among those on the BQL. As to incident (1), the AJ found that Complainant established a prima facie case of discrimination and that the Agency’s articulated reason of VA1 being rescinded due to a limited applicant pool was legitimate and nondiscriminatory. The AJ nevertheless found this explanation to be pretextual for several reasons. 2021000771 3 First, the Assistant Human Resources Manager (AHRM) averred that she had overheard comments attributable to S2 to the effect that S2 did not want Complainant in the position. Second, the AJ found that after VA1 was rescinded, Complainant attempted to arrange a meeting with S3, but S2 had intervened and cancelled that meeting. As to incident (2), the AJ found that being excluded from the BQL under VA2 was an adverse action, and that the Agency’s explanation that her score was not high enough to meet the cut-off score was also legitimate and nondiscriminatory. The AJ found this explanation to be unworthy of credence because the same number of applicants, four, were on the BQL for VA2 as for VA1 which, according to the AJ, undermined the “limited applicant pool” reason for rescinding VA1. Second, the AJ concluded that the Agency’s explanation that Complainant scored the lowest of the three candidates who were competitive for the position under VA2 “did not make sense.” As a result, the AJ found that Complainant proved that she was subjected to discrimination. To remedy the discrimination, the AJ ordered the Agency to offer Complainant a Clinical Psychologist (Drug Abuse Coordinator) position, pay Complainant back pay and benefits, pay Complainant $75,000 in non-pecuniary compensatory damages, and to post a notice. The Agency issued its final order rejecting the AJ’s finding of discrimination and the relief ordered. The Agency concurrently filed the instant appeal. CONTENTIONS ON APPEAL On appeal, the Agency contends that without notifying it of her intent to do so, the AJ expanded the claim addressed in its motion for summary judgment to include the nonselection under VA2. The Agency also appears to take issue with the reframing of the issues in the complaint, accusing the AJ of “moving the goal line.” Next, the Agency contends that the AJ ignored several material facts in dispute. Among these: the AJ found that the position under VA1 was offered to another candidate while Complainant’s immediate supervisor (S1) stated that no selection was made from the vacancy announcement; and the Regional Director, not the Warden (S3), was the selecting official for the vacancy under VA1. The Agency also argues that the AJ relied solely on Complainant’s affidavit while ignoring the contradictory affidavit testimony from the Agency’s witnesses and that the AJ’s decision without a hearing precluded the AJ from making credibility determinations. Accordingly, the Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS At the outset, we find that the first AJ found that the nonselection at issue consisted of two incidents, and that the Agency’s initial framing of the claim had not made that clear. Accordingly, the first AJ directed that a supplemental investigation of the reframed claim be conducted. The Agency did so. Consequently, it cannot argue after-the-fact that the second AJ unfairly and without adequate notice expanded the claim. 2021000771 4 Having found that the complaint as modified was properly framed, we must now determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. For the reasons below, we find that it was not. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment “where the [party opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an AJ could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing). The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross- examination and summary judgment on such evidence is improper." Pedersen v. Dep’t of Justice, EEOC Request No. 05940339 (February 24, 1995). 2021000771 5 Further, we note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-1 (Aug. 5, 2015); see also 29 C.F.R. § 1614.109(e). “Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims.” Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (March 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (October 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (April 25, 1995). In the case now before us, there are numerous material facts that remain in dispute. First, the AJ based her finding of discrimination in part upon her assessment that S2 was instrumental in cancelling a meeting that Complainant had attempted to arrange with S3. However, a review of S2’s affidavit testimony reveals that the investigator never once raised this issue with S2. IR 77- 80. Next, the AJ also found that S2 had made a statement to the effect that she did not want Complainant to serve as the DAPC. S2 averred that she was never contacted to provide a reference concerning Complainant’s qualifications for the DAPC position and denied ever saying that she did not want Complainant in the position. She admitted, however, that she recommended another candidate. IR 78-79. The one witness who provided an affidavit regarding the comment attributed to S2 about not wanting Complainant for the position averred that she never heard the comment directly from S2. Rather, during a hallway conversation, it came up among several people that S2 did not think that Complainant was fit for the position. IR 87-89. Overall, this evidence is not enough to support an inference of a discriminatory motivation attributable to S2. Next, there is a dispute in the record as to whether a selection was ever made under VA1 and why VA1 was rescinded. Complainant averred that a white female was offered the position but had declined the offer. IR 59. Yet the selecting official, S1, S2, and S3’s successor (S3 had since retired), all averred that no selection had been made from the certificate of eligibles associated with VA1. IR 70, 75, 79, 83. A memorandum addressed to the Agency’s consolidated staffing unit dated July 15, 2015, stated that no selection had been made from the certificates due to a limited applicant pool and that further recruitment efforts would be made in future vacancy announcements. IR 72, 145. The preponderance of the evidence seems to indicate that no selection was made from the VA1 eligibles list, yet the AJ went on to find that S3 selected the white female and closed VA1 after the selectee had turned the offer down. Also, it was the Regional Director who would have made the selection, not S3. The AJ made a finding that in closing the vacancy before making a selection, the Agency deviated from its own standard procedures. It is well-settled however, that agencies have broad discretion to carry out personnel actions and cannot be second-guessed without evidence of unlawful motivation. Sylvester C. v. Dep’t of Agric., EEOC Appeal No. 2019002268 (July 12, 2019) citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Nevertheless, the record still lacks an adequate explanation for not offering the position to Complainant or the other remaining candidate on the BQL for VA1. 2021000771 6 A third problematic factual dispute remains with respect to the determination of the BQL for VA2. According to the Section Chief of the Consolidated Staffing Unit, the BQ cutoff score for VA2 was determined based on the average score of all competitive applicants of which there were three. The Chief averred that the cut-off score, the average of the three scores, was 83.67, that Complainant’s score was 82.93, and that Complainant was excluded from the BQL even though her score was less than a point below the cut-off score. SIR 33-34. The record contains absolutely no information as to how the scores were derived or what criteria they measured. While an agency’s burden of production is not onerous, the Agency must nevertheless provide a specific, clear, and individualized explanation for a non-selection so that the complainant is provided with an opportunity to prove that the agency’s explanation was a pretext for discriminatory animus. Alline B. v. Soc. Sec. Admin., EEOC Appeal No. 0120162182 (Dec. 8, 2017), req. for reconsid. den’d EEOC Request No. 0520180194 (Apr. 19, 2018). Without an explanation as to how the applicants were rated, i.e., the factors that went into the numerical ratings, it is impossible to ascertain whether the Agency’s reasons for those ratings were legitimate and nondiscriminatory, which precludes a ruling on the merits of the claim. Since there are simply too many unresolved issues which require an assessment as to the credibility of the various management officials as well as Complainant’s coworkers, judgment as a matter of law for Complainant should not have been granted. CONCLUSION Therefore, after a careful review of the record, including the Agency's arguments on appeal, Complainant’s response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final order and REMANDS the matter for a hearing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the New York District Office within fifteen (15) calendar days from the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 2021000771 7 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021000771 8 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 2021000771 9 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 July 15, 2021 Date Copy with citationCopy as parenthetical citation