[Redacted], Hilda P., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 3, 2021

Appeal No. 2020003284 (E.E.O.C. Feb. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hilda P.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003284 Hearing No. 510-2017-00293X Agency No. BOP-2016-0619 DECISION On March 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 19, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Correctional Treatment Specialist (Case Manager), GS-11, at the Agency’s Federal Correctional Institution (FCI) Tallahassee in Tallahassee, Florida. 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. 2020003284 2 On July 18, 2016, Complainant filed the instant formal complaint. Complainant claimed that alleging that the Agency discriminated against her on the bases of sex (female) and disability (pregnancy) when:2 1. on June 27, 2016, Complainant became aware she was not selected for the position of Correctional Programs Officer (Unit Manager at FCI Edgefield, South Carolina), advertised under Vacancy Announcement Number AR0-2016-0082; and 2. on August 19, 2016, she became aware she was not selected for the position of Correctional Programs Officer (Unit Manager at FCI Bennettsville, South Carolina), advertised under Vacancy Announcement Number AR0-2016-0098. After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed its Motion for Summary Judgment. On January 14, 2020, the AJ issued a decision by summary judgment in favor of the Agency, finding no discrimination. In its February 14, 2020 final order, the Agency adopted the AJ’s decision. 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). 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 The record reflects that during the investigation, Complainant withdrew disability (pregnancy) as a basis. 2020003284 3 Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). The undisputed facts fully support the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant has worked as a Case Manager at the FCI Tallahassee since May 2011. Regarding claim 1, Complainant applied for the Correctional Programs Officer (Unit Manager at FCI Edgefield, South Carolina), advertised under Vacancy Announcement Number AR0-2016- 0082. Complainant’s application did not mention her sex. Complainant was one of fifty-one candidates on the Merit Promotion Certificate. The Warden of FCI Edgefield, South Carolina was the recommending official for the subject position. She explained that she sought an applicant with the following skills and experience: “a thorough knowledge of correctional techniques, and experience in meeting and dealing with people that demonstrated the ability to work effectively with inmates and associates in a correctional environment; the ability to perform supervisory and administrative duties successfully; a thorough and comprehensive knowledge of Bureau of Prisons’ internal policies, programs, regulations, and procedures; the ability to train subordinates, coordinate and direct activities and functions, evaluate performance of operations, and the effectiveness of programs; and the ability to maintain high work standards.” The Warden stated that after she reviewed the candidates’ resumes, she narrowed her list and recommended four candidates to the Regional Director, Southeast Regional Office in Atlanta, Georgia, who was also the selecting official for the subject position. The selecting official asserted that she “relies heavily on the warden’s recommendation based on the specific need/mission of the institution where the vacancy is located.” The selecting official stated that after a review of the candidates’ resumes, she chose the selectee, who was the individual at the top of the Warden’s list. 2020003284 4 In comparing Complainant to the selectee, the selecting official attested that the selectee had longer Agency service than Complainant. She also noted that the selectee had held the position of Case Manager for longer than Complainant and has acted as Correctional Programs Officer longer than Complainant. Moreover, the selecting official asserted that Complainant’s sex was not a factor in her decision to select the selectee. Regarding claim 2, Complainant asserted that on August 19, 2016, she became aware she was not selected for the position of Correctional Programs Officer (Unit Manager at FCI Bennettsville, South Carolina), advertised under Vacancy Announcement Number AR0-2016-0098. The AJ noted that when Complainant applied for the Correctional Programs Officer, she did not mention her sex in the application. Complainant was one of the forty candidates on the Merit Promotion Certificate for the subject position. The Warden of the Bennettsville FCI was the recommending official. He attested that he knew Complainant’s sex because he worked with her at the Federal Detention Center in Miami, Florida. He stated that he sought an applicant with the following skills and experience: leadership and case management experience. The selecting official stated that the Warden provided two top candidates, a named female candidate and a named male candidate. Complainant was the fourth candidate on the Warden’s list. The selecting official stated that she planned to select the first candidate on the Warden’s list but she had been selected for another position. Thereafter, the selecting official selected the second candidate on the Warden’s list. She attested that she selected the selectee because he had more years of experience as a Case Manager than Complainant. She also noted that the selectee took on several collateral duties that would help him make the transition back to a Unit Manager. Furthermore, the selecting official stated that she did not consider Complainant’s sex when she selected the selectee. In his decision, the AJ determined that the Agency articulated a legitimate, non-discriminatory reason for its actions. The AJ noted that the evidence established that Complainant “was not plainly superior to either of the selectees…no interviews were held, and the recommending official based their recommendations on the applications as completed by the candidates.” Beyond her bare assertions, Complainant did not prove, by a preponderance of the evidence, that the Agency management’s proffered reasons were a pretext designed to mask discrimination on the basis alleged. 2020003284 5 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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. 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. 2020003284 6 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 February 3, 2021 Date