Scotty R. Hall, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, (Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionJul 14, 2009
0120091410 (E.E.O.C. Jul. 14, 2009)

0120091410

07-14-2009

Scotty R. Hall, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Bureau of Prisons), Agency.


Scotty R. Hall,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

(Bureau of Prisons),

Agency.

Appeal No. 0120091410

Agency No. P-2005-0247

Hearing No. 470-2008-00051X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 22, 2008 final order concerning

his equal employment opportunity (EEO) complaint claiming 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.

Complainant alleged that the agency discriminated against him on the bases

of race/color (white) and in reprisal for prior EEO activity when:

on March 27, 2005, the agency abolished his position of Emergency

Preparedness Officer (EPO) and assigned him to Correctional Services

Officer.

The record reflects that on December 2, 2005, an EEOC Administrative Judge

certified a class complaint filed on behalf of Bureau of Prison employees

nationwide (EEOC Hearing Nos. 320-2005-00046X and 320-2005-00333X).

Subsequently, the agency determined that it should discontinue the

processing of Agency Complaint No. P-2005-0247 and issued a decision

notifying complainant that he could challenge the determination

on appeal. The record reflects that complainant filed an appeal.

The record further reflects that on July 19, 2007, the Commission

issued a decision reversing the Administrative Judge's conclusion and

denying certification of the class complaint. See Dennis Turner et al

v. Department of Justice, EEOC Appeal No. 0720060041 (June 19, 2007).

In its decision, the Commission concluded that the common questions of

fact among the potential class members did not exist. The Commission

reversed the agency's decision to discontinue processing of Agency

Complaint No. P-2005-0247. On remand, the agency was directed to

resume processing of Agency Complaint No. P-2005-0247 from the point

where processing ceased. Hall v. Department of Justice, EEOC Appeal

No. 0120062032 (July 27, 2007).

The record reflects the agency resumed processing of Agency Complaint

No. P-2005-0247 from the point where processing ceased which is the

subject of the instant appeal.

Following the investigation into his formal complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ). Following

the November 19, 2008 telephonic hearing in regard to the agency's Motion

For Decision Without a Hearing, the AJ issued a bench decision by summary

judgment in favor of the agency. The agency fully implemented the AJ's

decision in its final order.

The AJ found that complainant did not establish a prima facie case of

race/color and reprisal discrimination. The AJ further found even if

complainant established a prima facie case of race/color and reprisal

discrimination, the agency articulated legitimate, nondiscriminatory

reasons for its actions which complainant failed to show were a pretext

for discrimination. Specifically, the AJ found that complainant's EPO

position was eliminated like four other named employees' positions at

the agency's Federal Medical Center in Lexington, Kentucky, pursuant to

the nationwide mission-critical initiative, which was a cost-savings

strategy implemented in response to the agency's constrained fiscal

calendar year 2005 budget.

Regarding complainant's assertion that the Associate Warden's statements

such as "cleaning the house" and "eliminating the old boy network" were

direct evidence of discrimination against him, the AJ found that the

alleged statements were not direct evidence of discrimination because

they were not "directly specifically and solely to the complainant."

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, summary judgment

is not appropriate. In the context of an administrative proceeding,

an AJ may properly consider summary judgment only upon a determination

that the record has been adequately developed for summary disposition.

Complainant has offered no persuasive arguments on appeal regarding the

AJ's decision to issue a decision without a hearing, or regarding the

AJ's findings on the merits. Therefore, 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 Administrative

Judge's issuance of a decision without a hearing was appropriate and a

preponderance of the record evidence does not establish that unlawful

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 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 (S0408)

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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time limits

as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 14, 2009

__________________

Date

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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120091410

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