Reggie D.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jul 30, 2019

0120181176 (E.E.O.C. Jul. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reggie D.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181176

Agency No. BOP-2016-0770

DECISION

On February 15, 2018, 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
January 17, 2018 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. 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 Cook
Supervisor/Cook Foreman, WS-7404-08, at the Low Security Institution, at the Federal
Correctional Complex in Coleman, Florida (FCC-Coleman Low). On August 24, 2016,
Complainant filed an EEO complaint alleging that the Agency discriminated against him based on
race (African-American), national origin (African-American), and in reprisal for prior protected
EEO activity2 when: (1) on April 27, 2016, he was not selected for the position of Assistant Food

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.

2 While Complainant did not raise reprisal in his formal complaint, Complainant claimed that his
suspension was based on retaliation for contacting an EEO Counselor regarding his non-selection.
The Commission will therefore address this allegation later in this decision.
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Service Administrator (AFSA) advertised under Vacancy Announcement No. AR0-2016-0058,
while the last five individuals selected for the AFSA position at his institution were Hispanic; and
(2) on July 13, 2016 he was issued a proposal for a three-day suspension (later mitigated down to
a two-day suspension) for Unprofessional Conduct stemming from an incident that occurred on
January 8, 2015.

After 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 EEOC Administrative
Judge. In accordance with Complainant’s request, 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. Complainant filed the instant appeal without
submitting any arguments or contentions in support.

FACTUAL BACKGROUND

Complainant stated that he applied for the advertised AFSA position at FCC-Coleman Medium
Security Institution in January 2016. Complainant applied for dual consideration as a competitive
applicant and a 30 Percent or More Disabled Veteran applicant. Complainant did not receive a
high enough score based on his application package to be referred to the selecting official for
further consideration as a competitive applicant; however, he was referred under the disabled
veteran special hiring authority certificate. Management did not conduct interviews for the
position. Complainant claimed that he learned that he was not selected on or about April 27, 2016,
when the Warden’s Secretary sent an email congratulating the selectee (SE) (Hispanic).
Complainant also claimed that he asked his second-line supervisor (S2) why he had been
continually bypassed for AFSA positions and S2 told him, it was because he had “baggage.”
Complainant believed SE’s selection was discriminatory because the last five AFSA selectees at
FCC-Coleman, including SE, were all Hispanic. Complainant also declared that he was unaware
of SE's qualifications, so he was not sure if he was better qualified than SE. However, Complainant
believed that he was “more than qualified” for the AFSA position because he had 22 years of food
service experience, including six years as a Cook Supervisor with the Agency.

Complainant stated that he was accused of using profanity during a verbal confrontation with a
Cook Supervisor (C1) (Black) in January 2015. He further claimed that after the incident,
management conducted a threat assessment meeting to see if he and C1 could work together. The
matter was later referred to the Office of Internal Affairs and then a Special Investigative
Supervisor for investigation. Several witnesses corroborated that Complainant used profanity and
threatening language toward C1 during the altercation. Following a drawn-out investigation, an
AFSA (AFSA1) (White) issued Complainant a proposal for a three-day suspension for
unprofessional conduct in July 2016. Complainant provided written and oral responses. In
November 2016, the FCC-Coleman Low Security Institution Warden (W1) (Black) ultimately
issued Complainant a decision letter suspending him for two days for unprofessional conduct for
his actions in the January 2015 altercation.
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Complainant added that he believes he was investigated for unprofessional conduct in retaliation
for his contact with an EEO Counselor in May 2016, and because management knew that a
sustained charge of unprofessional conduct would be a valid reason not to promote him.

The FCC-Coleman Complex Warden (W2) (Hispanic) stated that he was not the selecting official
for the AFSA position in question and that former Southeast Regional Director (SO) (retired) made
the selection. W2 affirmed that the FCC-Coleman Wardens and Associate Wardens discussed the
candidates on the certificates and made a recommendation to SO. He also stated that he could not
recall if he made a specific recommendation to SO but added that SE was better qualified because
he was already an AFSA at another Agency institution and was therefore more experienced than
Complainant.

AFSA1 stated that she assisted S2 in reviewing the resumes of the applicants on the Best-Qualified
list for the AFSA position, conducted “vouchering3,” and helped create a matrix of the candidates.
AFSA1 also stated that she believes that SE was one of the most qualified candidates because he
was already a GS-11 AFSA. She confirmed that SE had more experience than Complainant who
was one of over 40 Cook Supervisors at FCC-Coleman.

The record reveals that SO retired from federal service and declined to participate in an interview
with the EEO investigator but did respond to the investigator's interview request by email. SO
stated that she does not know Complainant and did not recall who was selected for the AFSA
position. SO also averred that she typically reviewed documentation such as the Best Qualified
certificate, resumes, and reference check forms in making selections. She added, “[a]s the
selecting official, I usually relied heavily upon the Warden's recommendation where the vacancy
was ·located.” The record indicates that S2 retired from federal service as well and did not provide
an affidavit in this matter.

W1 was the deciding official with regard to Complainant's suspension in November 2016. W1
stated that he decided to issue the suspension letter based on the facts of the case as developed
during the investigation and referred to the Notice of Proposed Suspension for an explanation of
the proposal.

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

3 Vouchering involves soliciting performance information from the applicant’s first-level
supervisor.
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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

Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate
treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S.
567, 576 (1978). Second, the burden is on 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). Third,
should the Agency carry its burden, Complainant must then have an opportunity to prove by a
preponderance of the evidence that the legitimate reasons offered by the Agency were not its true
reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency's explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Pretext may be shown by direct or indirect evidence of discrimination, either by showing that the
Agency's explanation is not worthy of belief or by showing that a discriminatory motive was more
likely than the given explanation. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 517 (1993);
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). For example, in a non-selection
case, pretext may be shown by a showing that Complainant's qualifications are plainly superior to
those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). At all times, the
burden of persuasion lies with Complainant to show that it was discriminatory animus that
motivated the Agency. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983).
To ultimately prevail, a 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 (2000). Rejection of the employer's proffered reason permits the trier of fact to “infer
the ultimate fact of intentional discrimination.” St. Mary's Honor Center v. Hicks. 509 U.S. 502,
511(1993).

Claim 1 - Non-Selection

The record shows that Agency management officials articulated legitimate, nondiscriminatory
reasons for selecting SE over Complainant. More specifically, the initial review of resumes for
the position at issue was conducted by the Consolidated Staffing Unit.
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The Chief of the Consolidated Staffing Unit confirmed that Complainant applied for dual
consideration as a competitive applicant and as a 30 Percent or More Disabled Veteran under Merit
Promotion procedures. Complainant’s individual score, based solely on the answers provided
during the automated application process, failed to meet the best qualified cutoff score and he was
not referred as a competitive applicant. Complainant was referred for further consideration under
the Disabled Veterans Special Hiring Authority, however. Nonetheless, Agency officials
confirmed that SE was recommended as the best qualified applicant for the position as he was
already in the same position, Assistant Food Services Administrator, in good standing at another
institution at the time of the selection. SO said that she generally relied heavily on
recommendations from management at the institution where the vacancy was located. In addition,
SE received “above average” ratings on his reference check forms.

While Complainant had multiple years of Food Service experience, the record reveals that SE had
served as an AFSA for nearly three years at the time of his selection. In addition, as discussed
above, SE’s reference check forms indicated that he had been performing those duties at an above
average level. Thus, in this case, SE had attributes that justified his selection, in particular his
supervisory experience and strong recommendations from management. In the absence of
evidence of unlawful discrimination, the Commission will not second guess the Agency's
assessment of the candidates' qualifications. Tx. Dent. of Cmty. Affairs v. Burdine, 450 U.S. at
259. Accordingly, we find insufficient evidence in the record of discriminatory animus on the part
of any responsible management official.4

Claim 2 - Suspension

The record shows that the Agency articulated a legitimate, non-discriminatory reason for issuing
Complainant a proposal for a three-day suspension in July 2016. More specifically, Complainant
was charged with unprofessional conduct by AFSA1 for his actions during a verbal confrontation
with C1 in January 2015. The record also shows that W1 ultimately chose to implement a two-
day suspension in November 2016 for the same reasons. While Complainant asserts that he did
not use profanity or engage unprofessional conduct, the record shows that multiple witnesses
provided statements to management corroborating that Complainant used threatening and profane
language toward C1 during the altercation. We also find the record devoid of evidence of
discriminatory animus on the part of any responsible management official.

Reprisal

To the extent that Complainant also alleges that the proposed three-day suspension (later mitigated
down to a two-day suspension) was retaliation for his initial EEO contact in May 2016 regarding
the non-selection referenced in this matter, the Commission finds that the record shows that
Complainant’s unprofessional conduct had been previously reported and was being investigated

4 Contrary to Complainant’s assertion, the record establishes that at least one of the last five AFSA
positions filled at Complainant’s workplace was filled by an individual identified as White. In
addition, the undisputed record establishes that half of the individuals selected for AFSA positions
in the Southeast Region between 2012 and 2016 were Black.
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by the Special Investigative Supervisor after referral from Agency’s Office of Internal Affairs prior
to the Complainant’s initial contact with an EEO Counselor. While the record establishes that the
investigation may have been slow-moving, the record also establishes that OIA interviewed
Complainant on May 13, 2016, prior to his first contact with an EEO Counselor on May 31, 2016.
The Special Investigative Supervisor completed his investigation on May 16, 2016. The record
is devoid of evidence of retaliatory animus on the part of any responsible management official.

CONCLUSION

Accordingly, based on a thorough review of the record, we find insufficient evidence to support a
finding of discrimination or retaliation and therefore, AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).
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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

July 30, 2019
Date