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

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2020003504 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathaniel S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003504 Hearing No. 480-2018-00721X Agency No. BOP-2017-0842 DECISION On May 20, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 21, 2020 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND Complainant worked as a Unit Manager, GS-12, at the United States Penitentiary in Atwater, California. On September 5, 2017 (and subsequently amended), Complainant filed a formal complaint in which he alleged that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), age (53), and in reprisal for prior protected EEO activity when: 1. On April 19, 2017, Complainant was given an unfavorable annual performance evaluation; 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. 2020003504 2 2. Complainant was not afforded the opportunity to serve as the Acting Associate Warden for programs or operations; 3. On November 20, 2017, Complainant was issued a one-day suspension for unauthorized release of information; and 4. Between June 13, 2017 and January 31, 2018, Complainant was not selected 14 times for various promotions, including various Executive Assistant, Program Officer/Administrator, and Correctional Specialist positions.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report 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 matter granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. When the Agency did not issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. ANALYSIS AND FINDINGS 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. Disparate Treatment To warrant a hearing on his disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 2 The Agency held the reprisal-based portion of Complainant’s non-selection claims in abeyance because they were subsumed within a pending class action, Turner, et al. v. Dep't of Justice, EEOC No. 541-2008-0255X. 2020003504 3 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed in this case, however, since the AJ found that the various named Agency officials articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Regarding Complainant’s performance appraisal, the Associate Warden (AW) who issued the appraisal gave Complainant a grade of 400 points, which corresponded to a rating of “Excellent,” and this assessment was based on her observations of him as well as the input that he provided her. As to Complainant’s claim that he was not given the opportunity to act as an associate warden, Complainant was given such opportunities on March 25, 2016, August 14-16, 2017, and November 5-11, 2017. The record reveals that these assignments only occurred when an associate warden was absent due to travel or leave and there was no set rotation or seniority rules. With respect to Complainant’s suspension, the Warden proposed that Complainant be suspended for five days for allowing one of his orderlies to shred old paperwork containing sensitive information. Complainant did not deny that this incident had occurred. The suspension was upheld, but mitigated down to one day. With regard to the 14 non-selections, the record reveals that Complainant had made the best- qualified list for all of the positions in question, that none of the selecting officials had conducted interviews, and that in each case the selecting officials adequately explained that the selectees were better suited for the positions based on the specific background and experience that the selecting officials sought. For example, the selecting official for an executive assistant vacancy in Miami, Florida averred that he chose the selectee because of his experience as an acting associate warden and executive assistant and especially because he activated the Consolidated Services Center which received, delivered, and stored freight materials for the operations of two facilities. The selecting official for a correctional institution administrator in Terra Haute, Indiana confirmed that the selectee had extensive experience as an acting control unit manager, complex case management coordinator, deputy complex case management coordinator, and correctional officer. Additionally, the selecting official for a case management coordinator position in Lompoc, California averred that Complainant did not have comparable case management coordination experience when compared to the selectee. Finally, the selecting official for a correctional institutional administrator position stated that the selectee was selected because he had more experience at different facilities and because he had better ratings in the areas of administrative skill, oral communication and written communication skills, responsiveness, analytical ability, and leadership skills. To move forward with a hearing, Complainant must raise a genuine issue of material fact as to whether the Agency's explanation for its actions 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 raised as an issue by pointing to 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 2020003504 4 Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). With respect to the 14 non-selections, Complainant could raise a genuine issue of material fact as pretext by showing that his qualifications for those positions were plainly superior to the qualifications of any of the selectees. Hung P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). As previously noted, Complainant made the best-qualified list for all 14 vacancies. Complainant was considered by the various selecting officials to be qualified for the positions in question, and in each case, the selectee was deemed the better-qualified candidate. Only one of the selecting officials had known Complainant and Complainant failed to present any testimonial or documentary evidence tending to establish that any of the selecting officials considered Complainant’s protected classes in connection with any of the positions for which Complainant applied. We therefore find, as did the AJ, that Complainant failed to raise a genuine issue of material fact as to whether his qualifications for any of the 14 vacancies were plainly superior to the qualifications of the selectees. Other 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). On appeal, Complainant contends that the interrogatory that he prepared for the investigator and supporting documentation showed how the Agency discriminated against him and retaliated against him for filing a prior EEO complaint. He also points to an evaluation prepared by Federal Sector Programs in November 2010, which identified widespread fear of retaliation among employees as one of its findings. Beyond these assertions, however, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut the explanations for the various nonselections and other actions provided by the named management officials or which cast doubt upon the veracity of those individuals as witnesses. Likewise, Complainant has not presented any evidence tending to raise questions as to the existence of any of the indicators of pretext listed above. Ultimately, we agree with the AJ that Complainant has not provided enough evidence to raise a genuine issue of material fact as to whether any of the officials named in the complaint harbored unlawful animus based on Complainant’s protected classes. 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 order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 2020003504 5 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. 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). 2020003504 6 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 September 29, 2021 Date