[Redacted], Lionel A., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004362 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lionel A.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2020004362 Hearing No. 570-2019-00375X Agency No. USM-2017-00497 DECISION On July 28, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 9, 2020 final decision 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. BACKGROUND Complainant worked as a Deputy United States Marshal - Criminal Investigator (DUSM), GS- 1811-12, at the Agency’s Northern District of California Field Office in McKinleyville, California. The Agency hired Complainant as a DUSM from the Supreme Court Police on February 2, 2011. He was appointed at the GL-0082-7, Step 00 level, which meant that he was able to retain the salary of $72,274 that he had earned at the Supreme Court. At the time, the highest salary at grade level 7 step 10 was approximately $61,000. IR 30. In April 2013, Complainant was converted to the position of Criminal Investigator, GS-1811, and was promoted to GS-11, Step 6. As a result of his promotion, Complainant received a base salary of $72,859. IR 68. 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. 2020004362 2 Three White DUSMs (C1, C2, and C3), all former Supreme Court Police Officers who were converted to the 1811 series and promoted to GS-11, had their salaries adjusted to Step 10. Consequently, C1, C2, and C3 were all given a base salary of $81,204. IR 29, 32, 38-39, 45, 47, 58, 69. Complainant first became aware of the discrepancy on an unspecified date in 2016 when he was told about it by C4, a biracial DUSM who had also come over from the Supreme Court Police. When asked by the investigator who he believed was responsible for the allegedly discriminatory pay determination, Complainant averred that it was the Human Resources Officer (HRO) but was not sure. IR 46. The HRO averred that she had reviewed Complainant’s pay determinations after being notified of the issue by the Deputy Ombudsman. She maintained that after completing her review, she had determined that Complainant’s pay had been correctly calculated in accordance with Title 5 of the Code of Federal Regulations. IR 62-63, 65. She also averred that she was not aware of Complainant’s race and that she herself was African-American. IR 62, 63. Further, the HRO stated that she had no knowledge of the pay-setting review for the three comparators cited by Complainant. IR 64. C1 stated that his pay was adjusted at the GS-11 level in 2013 and that someone in the Human Resources Division had advised him not to tell anyone else because there were so many other people just in his office who wanted their salaries corrected as well. IR 69-71. When asked whether he believed that race played a role in his pay adjustment request being granted or Complainant’s request being denied, C1 stated that the corrections were done on an individual basis for employees who either requested it multiple times or threatened to file either grievances or lawsuits. C1 further affirmed that Human Resources Division staff were very hesitant to change pay and did not want to do so across the board. C1 also stated that pay issues were “widespread and pervasive” and attributed those issues to “horrible human resources staffing” and “gross mismanagement.” IR 71-72. Finally, C1 noted that the head of the Human Resources Division at the time of the pay adjustments (HR1), who was presumably HRO’s supervisor at the time she reviewed Complainant’s pay calculations, was Black. IR 72. On April 28, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on February 28, 2017, he received notice that his request to have his pay corrected/adjusted to a higher salary was denied. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew his request. Accordingly, the Agency issued its final decision in which it found that Complainant had not been subjected to discrimination as alleged. 2020004362 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the HRO articulated a legitimate and nondiscriminatory reason for denying Complainant’s request for a pay adjustment. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). The HRO averred that she reviewed Complainant’s pay under the rules set forth in Title 5 of the Code of Federal Regulations, and that based upon her understanding of those rules, Complainant’s pay at GS-11 Step 6 was correctly calculated. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked why he believed that his race was a factor in the denial of his request for a pay adjustment, Complainant stated that when the three White DUSMs requested to have their pay adjusted, the Agency granted their requests but denied his request for the same. IR 46. 2020004362 4 The Agency does not deny the fact that Complainant was given a lower base pay than C1, C2, and C3 when they were converted to the GS-1811 series and promoted to GS-11. Aside from administrative error, the record contains no other explanation for why Complainant’s salary upon conversion to the 1811 series was set at GS-11 Step 6 while the salaries of three White comparators were adjusted to GS-11, Step 10. On its face, the action appears to be a deviation from standard procedures for setting pay and may be an indicator of pretext. But rather than respond to the motion for summary judgment that the Agency filed on January 24, 2020, Complainant withdrew his hearing request five days later. In so doing, Complainant deprived the Commission of the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. The record reveals that the Agency hired seven DUSMs from the Supreme Court Police between 2010 and 2011, including Complainant, C1, C2, C3, C4, and C5, an African-American female DUSM. Complainant and C5 filed EEO complaints in connection with the Agency’s denial of their requests to have their salaries adjusted. In her complaint, C5 alleged that the Agency hired her at GL-082-7 Step 10 at a base salary of $60,505 with no pay retention while hiring C1, C2, C3, and C4 at GL-082-7 Step 00, which allowed them to retain their pay from the Supreme Court Police. Their starting salaries ranged from approximately $64,000 to $71,000. C5, however, requested a hearing before an EEOC AJ and the AJ assigned to that matter granted summary judgment in the Agency’s favor finding no discrimination. C5 appealed the Agency’s final order implementing that decision, and in Chanelle B. v. Dep’t of Justice, EEOC Appeal No. 2020001056 (June 2, 2021), we remanded the matter for a hearing, finding that genuine issues of material fact remained in dispute.2 In particular, we noted conflicting affidavit testimony from C1 and C4 regarding the existence of a possible discriminatory motive on the part of HR1.3 C5’s Investigative Report, pp. 91-94, 96-100, 108-15. No such conflict appears in the evidentiary record of the case now before us. As he did in the instant case, C1 averred in Chanelle B. that salary determinations and calculations were badly mismanaged by the Human Resources Division. No affidavit was taken from C4 in the instant case. Also, C1 made no mention of HR1 other than that she was a Black female who headed the Human Resources Division at the time his salary was adjusted. Ultimately, we find that, apart from his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the HRO’s explanation that she had correctly calculated Complainant’s pay at GS-11, which cast doubt upon the truthfulness of the HRO as a witness, or which otherwise tend to establish the existence of an unlawful racially-based motivation on the part of any Agency official. In particular, we find nothing in the record that conflicts with or refutes the HRO’s assertion that she had no involvement with the salary computations of C1, C2, or C3 or that she was unaware of Complainant’s race. 2 Chanelle B. is currently pending a hearing before an AJ. 3 The record in Chanelle B. indicates that HR1 took a position with another agency. No statement was ever taken from this individual, either in Chanelle B. or the instant case. 2020004362 5 The record establishes that Complainant’s pay was set appropriately according to regulation. Several of Complainant’s co-workers’ salaries were calculated erroneously and, according to officials, efforts have been undertaken to correct those administrative errors. A mistake, without more, does not establish discriminatory animus. See Calvin D. v. Dep't of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep't of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). Accordingly, based on the evidentiary record before us, we find that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2020004362 6 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 November 22, 2021 Date