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

Equal Employment Opportunity Commission

Aug 25, 2021

Appeal No. 2020001765 (E.E.O.C. Aug. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Luigi B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001765 Agency No. BOP-2016-0919 DECISION On January 4, 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 December 6, 2019 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer Specialist, GS-0007-08, at the Agency’s Federal Correctional Institution in Miami, Florida. On September 3, 2016, and subsequently amended, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Puerto Rican), national origin (Hispanic), sex (male), religion (devout Christian), and reprisal for prior protected EEO activity when: 1. on or about June 14, 2016, and August 10, 2016, management denied his request to adjust his work hours; 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. 2020001765 2 2. on or about August 3, 2016, a manager did not select him for a collateral duty position (Alternate Human Resources Specialist); 3. on October 10, 2016, a manager forced him to refrain from working on a holiday; and 4. from approximately July 14, through August 22, 2017, management denied him overtime opportunities and overtime pay, and ignored his request for compensation. As to Claim (1), Complainant stated that employees were allowed to bid for whatever post they wanted to work in the upcoming quarterly schedule. Complainant explained that he tended to choose posts with the hours 6:00 a.m. to 2:00 p.m. Complainant affirmed that he put in a bid for the Special Housing Unit Property Officer post but was unaware that the schedule for the post was 7:00 a.m. to 3:00 p.m. Complainant was awarded the bid. When Complainant arrived to his new post, he was informed that the post was from 7:00 a.m. to 3:30 p.m. Complainant acknowledged his own “human error” and asked his supervisor, the Captain, for an adjustment to his hours so he could work 6:00 a.m. to 2:00 p.m. The Captain denied Complainant’s request both in June 2016, and again in August 2016. The Captain explained that the quarterly roster for correctional officers was visibly posted seven weeks prior to the applicable quarterly period and specified the working hours of each post. The Captain denied Complainant’s request because all officers had sufficient prior notice of the hours associated with the post they bid on, and Complainant was granted the post he bid on. The record contains a memorandum from the Captain to Complainant, dated June 14, 2016, in which the Captain also explained that the post and associated hours Complainant bid on was established pursuant to the Master Agreement with the Union. Regarding Claim (2), Complainant applied for a collateral duty position as an alternate Human Resources Specialist. Complainant believed he was the best candidate for the position because years ago, early in his career, he did volunteer work in Human Resources when he worked at the Federal Detention Center in Miami. Ultimately, Complainant was not selected. The Warden testified that he selected the most qualified individual for the collateral duty position and referred to the selectee’s resume. The record contains the application packages for both Complainant and the selectee. In his package, Complainant identified, as relevant experience, his on-the-job training with Human Resources in 1995. The Selectee identified her experience working as an Educational Specialist, helping with time and attendance, recruitment, and training. The Selectee also highlighted her “Outstanding” performance rating and having been named Employee of the Month and Employee of the Year. The Selectee also had previously worked as a HR Analyst in private employment, performing a variety of duties attendant to human resources. Regarding Claim (3), October 10, 2016 was a Monday and Columbus Day, a federal holiday. Complainant asserted that his post at the time had him scheduled to work Monday through Friday, so he should have been scheduled to work on Columbus Day irrespective of the holiday. 2020001765 3 Complainant arrived to work that day, but the Captain told him that he was not scheduled to work on the holiday and to go home. Complainant asserted he was not given a reason. The Captain said that, during the quarter applicable to October 10, 2016, Complainant was assigned to sick and annual status, which is a variable assignment including shifts and days off, and that Complainant was scheduled based on the Institution’s needs. The Captain identified six other officers who were placed in day-off status on October 10, 2016. The Agency provided Complainant’s daily assignments, and on October 10, 2016, Complainant is indicated as having the day off. The daily roster for October 10, 2016, identifies several employees as having the day off as well. In Claim (4), Complainant explained that to sign up for overtime, an employee must log in to the computer system by inserting their ID card into the computer. Complainant claimed that he accidentally left his card inserted into the computer and forgot to take it out at the end of his shift from the computer. When he returned, the card was gone and could not be located. Complainant said that he had to complete a substantial amount of paperwork to get a new card and ended up not being able to access the computer for months which meant he could not sign up for overtime. Complainant believed that management could have given him temporary log-in abilities until he got his new card. The Captain disclaimed knowledge of this claim but noted that a review of the Agency’s records indicated Complainant signed up for overtime during this time and was contacted for overtime based on the overtime rotation. The Agency provided a copy of its overtime log for Complainant during the time period encompassed by this claim. The log demonstrates that Complainant signed up for overtime multiple times during the time period. At the conclusion of the 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. 2020001765 4 The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As more fully discussed above, the record does not support the finding that the legitimate, non- discriminatory explanations offered by management were pretextual or otherwise motivated by discriminatory animus. As to the first claim, the duty hours for Complainant’s requested post were clearly identified, and Complainant chose to bid on that post. For the second claim, the Agency chose the Selectee based on her qualifications. The Captain cited the Selectee’s application package which listed more significant experience and accomplishments. In the third claim, Complainant was on a variable work schedule for the quarter encompassing October 10, 2016, and simply was not scheduled to work that day. Finally, the Agency explained that Complainant was on the overtime rotation contrary to his allegation in Claim (4) and was scheduled to work overtime during the time period in question. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Where, as in Claim (2), the alleged discriminatory action is non-selection, pretext may be found where the complainant's qualifications are demonstrably superior to those of the selectee. Bauer v. Bailer, 647 F.2d 1037, 1048 (10th Cir. 1981). Otherwise, the Agency may choose among qualified candidates based on its discretion, provided that the decision is not based upon unlawful criteria. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997). It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see 2020001765 5 also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). Complainant simply does not carry his burden here, and we cannot find evidence in the record that indicates Complainant was observably superior to the selectee. Complainant sets forth no evidence tending to show the Agency’s articulated reasons for any of the actions at issue are false or unworthy of belief. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 2020001765 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 August 25, 2021 Date