0120160216
02-02-2018
Rene M.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rene M.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120160216
Agency No. P20130506
DECISION
On October 15, 2015, 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 September 21, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant established that the Agency subjected him to discrimination on the basis of age (49) and reprisal when in January 2013 he was not selected for a GS-14 Program Manager position.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Manager at the Agency's Central Office facility in Washington, DC. On April 23, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (49) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when he was not selected for a GS-14 Program Manager position.
Complainant had been working as a GS-13 Program Manager in the Agency's Clothing and Textiles Group. In December 2012, he applied for the GS-14 position. Complainant had in-excess of 20-years federal government working experience and believed that his established customer relationships had served the Agency well, particularly from a financial standpoint. The selectee (S1) was 53 years old. While S1 had only been with the Agency for three (3) years, he had extensive private sector supervisory experience.
At the conclusion of the investigation, by letter dated February 26, 2014, the Agency advised Complainant that the reprisal portion of his non-selection claim would be held in abeyance pending the outcome of the class action certification order from the Administrative in Turner, et. al. v. Department of Justice (Federal Bureau of Prisons), EEOC Hearing No. 541-2008-00255X. At that time, Complainant was advised of his right to appeal the abeyance decision.
The Agency also 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 with respect to his age claim. When the Agency did not receive a response from the Complainant 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 based on age.
CONTENTIONS ON APPEAL
On appeal, Complainant offers nothing new, other than a request for a hearing. The Agency contends that while Complainant made the best qualified list, his resume did not show the same level of experience as that of S1. The Assistant Director who reviewed the candidates' applications and recommended S1 to the selecting official (SO) indicated that S1's background was very much in line with the Agency new focus on working with private sector companies.
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").
As an initial matter, we find that the Agency properly placed Complainant's claim of denial of promotion based on reprisal in abeyance. EEOC Management Directive-110, Chapter 8, � III(C) (November 9, 1999) provides, in relevant part, that "an individual complaint that is filed before or after the class complaint is filed and that comes within the definition of the class claim(s), will not be dismissed but will be subsumed within the class complaint." There is no evidence that Complainant contested or appealed the decision to place his reprisal claim in abeyance. Accordingly, the instant decision will not consider the reprisal claim in the appeal.
Disparate Treatment
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. 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, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We find that no persuasive evidence was presented that the Agency had discriminatory animus towards Complainant. The SO indicated that S1 displayed superior qualifications and was selected based on his training, education, and extensive private sector experience. Also, the SO indicated that Complainant's background did not show the same level of qualification. As such, we find that the Agency clearly articulated the reasons why Complainant was not selected for the position. We also note that the S1, at 53, was older than Complainant.
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request Mo. 05940906 (January 16, 1997). Complainant could have established pretext with a showing that his qualifications were plainly superior to those of S1. Wasser v. Dep't of Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Baitar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant did not make such a showing in the instant case.
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 finding no discrimination.
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).
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
_2/2/18_________________
Date
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.
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