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

Equal Employment Opportunity Commission

Aug 7, 2019

0120182840 (E.E.O.C. Aug. 7, 2019)

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

Tamiko Q.,1
Complainant,

v.

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

Appeal No. 0120182839 and 0120182840

Hearing No. 480-2014-00662X and 480-2015-00173X

Agency No. BOP201301230 and BOP20140589

DECISION

On July 23, 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
June 20, 2018, final order concerning her equal employment opportunity (EEO) complaints
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Assistant Food
Service Administrator, GS-12 at the Agency’s Federal Correctional Institution (Med II) facility
in Victorville, California.

On November 2, 2013, Complainant filed an EEO complaint alleging that the Agency subjected
her to discrimination on the bases of race (Caucasian), sex (female), age, and reprisal for prior
protected EEO activity. In this complaint and a subsequent complaint, she alleged the Agency
unlawfully subjected her to discrimination when (1) on August 22, 2013, she received a letter

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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proposing a 30-day suspension, which resulted in a 10-day suspension being imposed on April 7,
2014; (2) on September 6 and 18, 2013, she submitted a grievance and did not receive a
response; (3) on September 20 and October 4, 2013, she received letters notifying her that her
grievance submission was rejected; (4) on January 27, 2014, she was informed that she was not
selected for the position of Food Service Administrator (announcement number NCR-2014-
0003-MFP) in Springfield, Missouri; (5) on February 26, 2014, she became aware that she was
not selected for the position of Food Service Administrator (announcement number FCR-2014-
0050-FDC) in Houston, Texas; and (6) on April 16, 2014, she received a less than favorable
performance evaluation.2

The Agency dismissed claims (2) and (3) pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to
state a claim, finding that these claims were a collateral attack on another proceeding.

The Agency accepted the remaining claims and conducted an investigation, which produced the
following facts:

In May 21, 2011, one of Complainant’s subordinates reported her for sexual harassment. The
Agency conducted an investigation, which resulted in the charges being sustained. On August
14, 2013, the Agency issued Complainant a proposed 30-day suspension for inappropriate
conduct of a supervisor. The Agency mitigated the suspension and, on March 13, 2014, issued a
10-day suspension.

The notice of proposed suspension, dated August 14, 2013, indicates three specifications of
inappropriate conduct of a supervisor. The first two specifications indicate that, on or about May
16, 2011, Complainant sent text messages from her personal cellular telephone to her
subordinate, a Cook Supervisor. In the first message, Complainant stated, “I was waiting for u to
grab me and kiss me today :).” In the second message, she stated, “I was going to call u and talk
dirty to u….” The Cook Supervisor produced his cell phone containing this message to the
investigator. The third specification was that, on May 19, 2011, the Cook Supervisor called
Complainant, in the presence of a witness, to tell her it was not a good idea for her to come to his
apartment, but, on or about May 20, 2011, Complainant went to his apartment, uninvited. The
notice was issued by the Food Service Administrator and indicates the Warden (Warden1) would
make the final decision. The investigator’s report supports these charges.

As noted above, Complainant was an Assistant Food Service Administrator, GS-12, at the
Agency’s facility in Victorville, California. She applied for a Food Service Administrator, GS-
12/13, position in Springfield, Missouri and was referred for further consideration as a GS-13
candidate. The Warden at the hiring facility (Warden2) attested that she recommended the
Selectee (Selectee1) to the Selecting Official (Selecting Official1) because he was currently a

2 In an October 2, 2014 decision, the Commission ordered the Agency to process claim (1) and
claims (4) and (5) on the bases of race, sex, and age, in accordance with 29 C.F.R. § 1614.108. It
found the Agency’s holding claims (4) and (5) in abeyance, with respect to the basis of reprisal,
was proper.
0120182839 and 01201840

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Food Service Administrator and had been performing his job very well. The Springfield facility
had a medical mission, with special nutritional issues, and Warden2 thought it was prudent to
select an administrator who had already demonstrated that they were able to handle the job.
Selection Official1 attested that he relied on the Warden1’s recommendation and considered the
fact that the selectee was successfully working in the position at another facility. Selectee1 was
hired as a GS-12.

Complainant asserted that she was more qualified than Selectee1 because he had only 2 years of
managerial experience compared to her 8 years.

Complainant also applied for a Food Service Administrator, GS-12/13, position in Houston,
Texas. The Warden at the hiring facility (Warden3) and the Regional Food Service
Administrator reviewed the applications and made recommendations to the Selecting Official.
Warden3 recommended the Selectee (Selectee2) and the Regional Food Service Administrator
concurred. Warden3 attested that he recommended Selectee2 because his department received
the highest rating during his most recent program review for overall operation of the Food
Service Department and he was already in the position of Food Service Administrator and
Complainant was likely not recommended due to her lack of experience and performance
compared to the top applicants. The Regional Food Service Administrator attested that he
concurred because Selectee2 was already in a Food Service Administrator position and had
received 2 superior program reviews as a Food Service Administrator. He also attested that
Selectee2 was better qualified.

Complainant asserted that she was more qualified than Selectee2 because Complainant had 4
years food service experience in the military and 10 years as a cook supervisor, with 8 of those in
food service management. Complainant believed her background and work experience were
greater than Selectee2’s, particularly as he had less managerial experience.

Complainant received an overall rating of “excellent” for the April 1, 2013 to March 31, 2014
rating period, but she believed she should have received a higher rating of “outstanding.” Her
Supervisor, the Food Service Administrator, attested that Complainant’s rating averaged between
“exceeds” and “outstanding,” and, while he recommended a rating of “outstanding,” Human
Resources staff audited his entries and determined he had overrated her based on a specific
objective measure – overtime expenditures. Complainant’s rating was, therefore, reduced to an
“exceeds” or “excellent” rating. Complainant’s Second-Level Supervisor, the Associate Warden,
issued the evaluation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 28,
2018, motion for a decision without a hearing and issued a decision without a hearing on May
15, 2018. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.
0120182839 and 01201840

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The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the Agency’s and the AJ’s final decisions in numerous ways.
She asserts that the Agency’s final decision does not addressed the dismissed claims and does
not address each claim individually. The Agency did not make findings on each claim and
attempts to dismiss claims that were not addressed in the Agency’s decision. Complainant also
asserts the record was not adequately developed for summary judgment and the record is
insufficient to support the AJ’s conclusions of law. Complainant also asserts that the AJ did not
articulate any credibility determinations; the decision implies all such credibility determinations
were made in favor of the Agency. She also asserts that the AJ made erroneous factual
determinations and determinations of law. Complainant asks for a de novo review of the claims
and a determination that the AJ made substantial errors in fact and on law. She asks that the
Commission vacate/reverse the final decision and remand the claims for a hearing.

In response, the Agency asks that the Commission uphold its final decision.

ANALYSIS AND FINDINGS

Summary Judgement

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.

In order 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. While
Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point
0120182839 and 01201840

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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 her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Dismissed Claims

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

The Commission has held that an employee cannot use the EEO complaint process to lodge a
collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No.
05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (Sept.
22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). A claim
that can be characterized as a collateral attack, by definition, involves a challenge to another
forum's proceeding, such as the grievance process, the workers' compensation process, an
internal agency investigation, or state or federal litigation. See Fisher v. Department of Defense,
EEOC Request No. 05931059 (July 15, 1994).

In the instant case, the dismissed claims concern the processing of Complainant’s grievance
submitted under the Agency’s process. Without allegations of other instances of discrimination,
these claims fall outside of EEOC jurisdiction. Thus, the proper forum for Complainant to have
raised these concerns is within the Agency’s process. See e.g., Pirozzi v. Department of the
Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC
Appeal No. 0120100241 (Oct. 5, 2010). Attempting to raise them here is an inappropriate use of
the EEO process to lodge a collateral attack on the Agency’s grievance process. See Smart v.
U.S. Postal Service, EEOC Appeal No. 0120054627 (Nov. 19, 2007) (the Commission found
that the complainant's claim that she was not being paid properly for COP was an impermissible
collateral attack on the Department of Labor); Smith v. U.S. Postal Service, EEOC Appeal No.
0120080070 (March 20, 2009) (the Commission affirmed the agency's dismissal of
Complainant's claim that the agency refused to process his leave buy back as a collateral attack
on the OWCP process). Therefore, we find the dismissal of these claims were proper.

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Disparate Treatment Claims

Complainant alleged the Agency treated him disparately in her claims regarding a proposed
suspension and suspension, her not being selected for two separate positions, and her
performance appraisal for the period of April 1, 2013 to March 31, 2014. 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 a complainant to prevail, 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 at n.13; Furnco Constr. Corp. v.
Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. See Tex. 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 Ctr. v. Hicks, 509 U.S. 502
(1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claims
ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions, as discussed above. With respect to the proposed suspension and the resulting
suspension, the Agency explained the proposed 30-day suspension was issued because of a
sexual harassment claim filed against Complainant, that was supported by an investigation. The
charges were sustained by the Warden, but, in light of Complainant’s reply to the charges, the
suspension was mitigated to 10-days.

With respect to her claims regarding not being selected for two separate Food Service
Administrator positions, the Agency sufficiently explained its conclusions that, for each position,
the selectee was better qualified, particularly because, in each case, the selectee was currently in
the position of Food Service Administrator and had a record of strong performance. We note that
Complainant was an Assistant Food Service Administrator. In the absence of evidence of a
discriminatory motivation, the Agency generally has discretion to choose among equally
qualified candidates. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 259. In addition,
the Agency has the discretion to choose among applicants who have different but equally
desirable qualifications. See Canhan v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).
Complainant has not produced sufficient evidence to dispute the selectees’ qualifications or
establish that she has superior qualifications to them. See Ash v. Tyson Foods, Inc., 546 U.S. 454
(2006).

With respect to the allegations regarding her performance appraisal, the Agency explained that
Complainant’s ratings were between “excellent” and “outstanding” and, while Complainant’s
supervisor deemed her deserving of an “outstanding” rating, this was overruled by the Human
Resources department, who determined that she had been overrated, based on an objective
performance measure regarding overtime expenditures. Therefore, we find that, although
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Complainant has alleged discrimination and a retaliatory animus, she has not established by a
preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the
Agency were a pretext for unlawful discrimination or motivated by some unlawful
discriminatory animus with respect to these claims.

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 (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.
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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

August 7, 2019
Date