0120161881
03-16-2018
Rosario C.,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
Rosario C.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120161881
Agency No. BOP20130071
DECISION
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 February 8, 2016, final decision concerning his equal employment opportunity (EEO) complaint. He alleged 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
At the time of events giving rise to this complaint, Complainant worked as a Cook Supervisor at the Agency's Federal Correctional Institute facility in Ashland, Kentucky.
On January 29, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and age (51) when, on October 12, 2012, he was notified that he was not selected for the position of Assistant Food Service Administrator (AFSA), GS-1667-11.
The pertinent record shows that he has prior EEO activity. His reprisal claim, which pertained to an earlier non-selection, was held in abeyance pursuant to an order in the class complaint of Dennis Turner v. Department of Justice (Federal Bureau of Prisons. As such, we will not address it at this time. This decision pertains only to the claims of race and age discrimination.
Complainant identified his race as African-American and his age as 51 at the time of the non-selection at issue. He worked at the facility as a Cook Supervisor for more than 17 years.
His immediate supervisor was the Assistant Food Service Administrator (AFSA) (Caucasian, DOB 12/63) (RMO1). His second level supervisor is the Food Service Administrator (Caucasian DOB 1/68) (RMO2). The Selecting Official for the position at issue was the Regional Director (Caucasian 4/64) (RMO3). The Selecting Official relied on the recommendations provided to him from RMO4 (Caucasian) and RMO5 (Caucasian) who were associated with Big Sandy facility.
Complainant applied for the supervisory position at issue under vacancy announcement number MXR-2012-0228. Complainant was on the best qualified list. He possessed the requisite time in grade. He was located at the facility that was recruiting and employed within the job series for which the position was announced.
Complainant stated that other than the Chaplain, none of the other managerial supervisors at FCI Ashland are African-American. Complainant had an outstanding evaluation and one sustained superior performance award.
The record indicates that the Agency selected a younger Caucasian employee for the position. The record includes testimony that her name was on the best qualified list.
The candidates' names on the certificate were "vouchered" or ranked by a panel. Candidates were rated with a numeric score between 1 and 5. One of the questions was whether the candidates were consistent in their performance.
The outgoing AFSA completed vouchering information for the three applicants from Ashland, because he was their first line supervisor and responsible for their yearly performance evaluations. RMO2 stated that there were 13 cook supervisors in his department and three, including Complainant, made the best qualified list for the vacancy. The supervisor identified the three subordinates by name. Those names did not include the name of the selectee. The information for the selectee came from another division, Big Sandy, where she worked. She had been temporarily placed at that location prior to her selection and she had been mentored concerning the "ins and outs" by the Regional Director, who was ultimately responsible for the selection.2
The policy is that the Warden of the institution with the vacancy sends a list of the top three to the regional office for selection.
RMO1 averred that he did not recommend any of the candidates whose names appeared on the best qualified list. RMO1 stated that he did not recommend Complainant, because Complainant's performance was not always consistent. He stated he did not provide any information about the selectee to anyone in the vouchering process. Two other management officials (RMO4 and RMO5) provided the information for the individual who was subsequently selected.
The selecting official for the position at issue was the Mid-Atlantic Regional Director (Caucasian, DOB 3/64). According to his testimony, he relied on the recommendations provided to him by RMO 4 and 5. Both recommendations recommended the younger Caucasian woman as their first choice. RMO3 averred that the selectee had above average reference checks and had more diverse experience. Complainant had no outside management experience.
The Agency stated that the selectee had advanced knowledge of budgeting, department head meetings, inventory and purchasing, while Complainant did not have knowledge beyond the Cook Supervisor position. Complainant was rated third among the top three candidates.
A co-worker testified that he believed that Complainant had more experience for the position, but he also believed that the selectee was also qualified for the position. The individuals doing the screening testified that they were unaware of Complainant's race at the time of the selectee's recommendation.
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 but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
Agency Decision
The Agency concluded that there was no evidence in the record that showed a connection between the Agency's non-selection and any protected factor. The Agency reasoned that it had provided a legitimate, nondiscriminatory reason, which was that the Regional Director selected the top candidate recommended by the Warden and the Regional FSA and that the selectee was the best qualified applicant for the AFSA vacancy. The Agency found that the evidence in the record did not support a finding of discrimination. This appeal followed.
Complainant did not submit a brief in support of his appeal.
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").
Initially, we note that there is an issue with regard to the date of the alleged discrimination. It is noted as occurring on October 12, 2012 in the Agency's Final Decision. The issues for investigation identified October 9, 2013, as the date that Complainant was notified that he was not selected for the position of Assistant Food Service Administrator, under vacancy announcement number MXR-2012-0228. The action at issued occurred in 2012.
Section 717 of Title VII requires that federal agencies make all personnel actions free of race discrimination. See 42 U.S.C. � 2000e-16 (all personnel actions in federal employment "shall be made free from any discrimination based on race"). Similarly, Section 633(a) of the ADEA requires that all personnel actions be made free of age discrimination.
Disparate Treatment - Non-Selection Claim
A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Complainant testified in his affidavit that he had previously applied for this same position, and twice not been selected. He noted that Caucasians were chosen in each of the instances. The statistical breakdown confirms that no African-Americans worked in management positions at the facility. In addition, the record shows that the selectee was younger than Complainant.
The Agency put forth the testimony of the selecting official to articulate a legitimate, non-discriminatory reason for Complainant's non-selection. In his affidavit, the selecting official stated that the selectee was the most qualified candidate and demonstrated diverse skills and management experience, beyond the skills of Complainant. He also averred that he relied on the recommendations in making his selection.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256.
Based upon our review of the record, we find that Complainant has not met his burden of establishing that the alleged events occurred because of his protected bases. While, we find it troubling that the statistical breakdown shows that African-Americans are generally not employed in the management category, the particular selection decision at issue is supported by the evidence of record. Consequently, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's decision as it applied to the race and age claims. We make no determination on the issue of retaliation. Those claims remain open as part of the pending Turner class action.
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 tends 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
March 16, 2018
__________________
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.
2 Complainant testified that two weeks prior to the selectee coming to Ashland, the Regional Food Service Administrator went to Big Sandy and stayed for two weeks running the department and teaching her what to do.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161881
7
0120161881