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

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2021003827 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003827 Hearing No. 530-2018-00251X Agency No. BOP-2017-0159 DECISION On July 23, 2021, 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 June 29, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as an Associate Warden (AW), GS-14, in Manchester, Kentucky. On January 11, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on age (52) and in reprisal for prior protected activity when, on September 9, 2016, Complainant was not selected for the position of Warden at FCI Butner, FCI Morgantown, FPC Alderson, and FCC Hazelton, advertised under vacancy announcement number MSS-2016-0009. 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. 2021003827 2 After an investigation, 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 Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency’s April 19, 2021 motion for a decision without a hearing over Complainant’s May 3, 2021 opposition. The AJ issued a decision by summary judgment in favor of the Agency on May 20, 2021. On June 29, 2021, the Agency issued a final order adopting the AJ’s finding of no discrimination on the basis of age.2 The instant appeal followed. On appeal, Complainant, through counsel, states that the AJ’s decision was not supported by the record. Complainant argues that the granting of a dispositive motion must be set aside when the decision is based on disputed facts. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). 2 In a footnote in the AJ’s decision, the AJ found that the claim of non-selection due to reprisal “was dismissed as a separate basis…as it was subsumed in the pending Turner Class Action.” We take administrative notice of the Turner class complaint. See Turner v. Department of Justice (Federal Bureau of Prisons), Hearing No. 541-2008-00255X, certificate of class affirmed, EEOC Appeal No. 0720110008 (September 15, 2015). The Turner class action concerned denial of promotions based on reprisal. 2021003827 3 Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Assuming arguendo that Complainant did make his prima facie case of age discrimination, the AJ found that the Agency articulated a legitimate, nondiscriminatory reason for not selecting Complainant. The Agency stated that the four selectees were more qualified than Complainant. The record contains evidence of the selection process, including the compiling of scores and determination of the score range for the Best Qualified (BQ) group. Testimony indicated the AW position occupied by Complainant and the other candidates was a developmental position for Warden and could result in reassignment and other opportunities for an AW to accrue experience towards selection for Warden. While Complainant had served as an AW for four years, he had not served in the Regional Office or Central Office Headquarters for the Agency. The FCC Butner selectee had experience as an AW as well as working at the Agency’s Central Office Headquarters. The FCI Morgantown selectee had many years of experience with the Agency, six years of experience as an AW, and experience working in the Agency’s Regional Offices. The FPC Alderson selectee had years of experience with the Agency, experience as an AW, and experience as a Regional Correctional Services Administrator. Finally, the FCC Hazelton selectee had many years of experience at the Agency and as an AW, and three years of experience as a Regional Human Resources Specialist. On appeal, Complainant fails to point to, with specificity, any facts that support his contentions. Instead, Complainant questions who the actual individuals were who participated in the hiring process. Complainant avers that he was the only candidate who was asked to serve an additional tour as AW. Testimony from one selecting official (YOB 1966) indicated that he and Complainant had spoken about Complainant’s decision not to do a third AW tour and its impact on Complainant’s candidacy. The selecting official testified that the AW position was developmental position and the more experience in challenging assignments, as well as different security levels and responsibility levels at the Regional and Central Office Headquarters, were all key pieces of experience. 2021003827 4 Agencies have broad discretion in hiring comparably qualified candidates, and so long as the selections are not based on unlawful considerations. Complainant could establish pretext by showing that his qualifications are observably superior to those of the selectees. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant has not met his burden by demonstrating that he was a plainly superior candidate for the position and the Agency’s hiring officials chose not to hire him based on his age. Therefore, Complainant has not established that management’s articulated reason for his non-selection (the selectees were judged to be more qualified) was a pretext for unlawful discrimination. CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s finding of 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. 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. 2021003827 5 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. 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 30, 2021 Date