[Redacted], Nicholas M., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionNov 15, 2021Appeal No. 2020003985 (E.E.O.C. Nov. 15, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicholas M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003985 Hearing No. 550-2017-00075x Agency No. BOP-2016-0452 DECISION On June 8, 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 March 9, 2020, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Education Specialist, GS-1779-11, at the Agency’s Federal Correctional Institution in Dublin, California. On March 24, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and reprisal for prior protected EEO activity when, on January 14, 2016, he was notified that he was not selected as an Education Program Administrator at the Agency's Western Regional Office under Vacancy Announcement No. WRO-1710-13. 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. 2020003985 2 Subsequently, the Agency accepted the foregoing claim of discrimination based on disability and then conducted an investigation into the matter.2 The investigation showed that Complainant applied for the position of Education Program Administrator at the Agency's Western Regional Office under Vacancy Announcement No. WRO-1710-13. He was placed on the Exception Certificate list along with two other candidates. An additional five candidates were placed on the Merit Promotion Certificate list. All eight of these candidates (including Complainant) were referred to the selecting official (Selecting Official) for consideration. The Selecting Official reviewed the applications, resumes, and reference checks for the eight candidates, and ultimately selected someone other than the Complainant for the position of Education Program Administrator, finding the Selectee to be the better candidate. 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). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing. The Agency responded that it supported the issuance of a decision without a hearing. Complainant did not file a response either in support of or objection to a decision without a hearing. After giving the parties adequate time to respond, the AJ issued a decision by summary judgment in favor of the Agency on February 4, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends the Agency has failed to establish a legitimate, non- discriminatory basis for its non-selection of Complainant. In sum, Complainant argues: (1) that a Bureau of Prisons management official (Management Official) knowingly provided false information in response to the reference check for Complainant, which tainted the selection process; (2) the Selecting Official’s purported reliance on “leadership skills” as a basis for the selection is contradicted by the written record; and (3) the Selecting Official’s purported reliance on the “development of national programs” as a basis for the selection is without justification, without evidentiary support, and contrary to the record. Complainant asks that the Final Agency Decision be reversed and that the matter be remanded for a hearing. The Agency contends on appeal that the Final Agency Decision should be affirmed because Complainant has not shown he was clearly more qualified than the selectee and there is no evidence the reference check process was tainted by discriminatory animus based on disability. 2 Complainant was notified that his claim of reprisal would be subsumed into the pending Turner v. U.S. Dep’t of Justice, EEOC Request No. 052160037 (February 11, 2016) class complaint, but it would be investigated to preserve the record for future adjudication. Although the AJ addressed Complainant’s reprisal claim, the Agency did not address it in the Final Agency Decision because of the pending class complaint and we will also not address the reprisal claim as it is subsumed in the Turner class action. 2020003985 3 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, while Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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 Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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). To establish a prima facie case of disability discrimination under a disparate treatment theory, the complainant must demonstrate that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) be was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. Carney v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981)). 2020003985 4 The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. 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). Complainant stated that as a result of cancer treatment, he had to have a colostomy, which limits his ability to engage in heavy lifting and requires regular irrigation. Complainant indicated that his condition is permanent but did not present any work restrictions for him. He said that the Selecting Official was aware of his disability. Here, even assuming, arguendo, that Complainant established a prima facie case of disparate treatment, we find that the Agency articulated legitimate, nondiscriminatory reasons for Complainant's non-selection. The Selecting Official stated there was significant competition for the vacancy in question, with eight candidates being deemed qualified and referred to her for possible selection. She stated that she reviewed the candidates’ application packages in making her selection and selected the candidate who, in her judgment, was best qualified for the position. Among the factors she found persuasive in making the decision were the Selectee’s experience at BOP, his education, and his above-average ratings in his reference check. She listed as a significant factor the Selectee’s leadership skills and interests in pursuing innovative changes for the BOP, as he detailed his direct involvement in the development of national programs. She noted his participation in work groups and his co-authoring evaluative documents which were used as a basis for new national policy. The Selecting Official stated that Complainant was a strong candidate, but the experience he described in his application/resume did not include direct involvement in the development of new programs and while Complainant received above- average ratings from his associate warden, the former Deputy Regional Director was also contacted for a reference check for Complainant since he had supervised Complainant when Complainant previously held the position for which he was currently applying. The Deputy Regional Director rated Complainant as average in some categories and indicated he would not hire Complainant for the position. The Selecting Official indicated that taken altogether, she felt the Selectee was the best person for the position. She further indicated she did not seek a reference check from Complainant’s first-line supervisor because that supervisor was also among the eight candidates for the position. Complainant failed to establish that the Agency's articulated reason for Complainant's non- selection was pretext for discrimination. The complainant can show pretext in two ways, “either [1] directly by persuading the court that a discriminatory reason more likely motivated the employer or [2] indirectly by showing that the employer's proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant has not produced any evidence to support his claim that false information was provided during his reference check. Complainant essentially argues that the usual vouchering process was not followed for him while it was for the Selectee, but this ignores that Complainant’s first line supervisor was also competing for the vacancy in question and that he 2020003985 5 was the only candidate who had previously held the same position as the vacancy. Complainant has not provided any evidence which shows that reliance on the references provided to the Selecting Official was discriminatory or pretextual. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep't of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). When the issue is non-selection, evidence of pretext can take the form of a showing that Complainant's qualifications were plainly superior to those of the selectee. Hung P. v. Dep't of Veteran Affairs, EEOC Appeal No. 0120141721 (Dec. 3, 2015). The Supreme Court has addressed the question of comparative qualifications as evidence of pretext in a non-selection case and held that the differences in qualifications must be “significant.” See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Complainant has asserted that he had superior leadership skills, including experience developing national programs, that the Selecting Official attributed as the reasons for choosing the Selectee. While Complainant may disagree with the selection decision of the Agency, the record does not establish that his background was plainly superior to that of the Selectee. Although Complainant has alleged that the Agency acted discriminately, the record simply does not provide any evidence that the selection was motivated in any way by his disability rather than management’s view of his work performance when he previously held the position in question. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Therefore, we find Complainant has failed to establish his claim of disability discrimination. 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. 2020003985 6 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). 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. 2020003985 7 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 15, 2021 Date Copy with citationCopy as parenthetical citation