0120120734
05-12-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 0120120734
Hearing No. 570-2010-00838X
Agency No. USMS-2009-0381
DECISION
On November 22, 2011, Complainant filed an appeal from the Agency's October 18, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Deputy United States Marshal at Superior Court in Washington, D.C.
On April 27, 2009, Complainant contacted the EEO Counselor alleging discrimination. On June 17, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 19641 when, from October 17, 2008, to March 13, 2009, he was under an internal investigation which was "purposely prolonged" to deny him the opportunity for promotion. In December 2008, he was not selected for four merit promotion positions for which he had applied, even though he was listed on the Best Qualified lists. The four positions at issue were:
1. Assistant Chief Deputy U.S. Marshal (DC/SC), GS-1811J4, advertised under announcement number MP A-08-0252;
2. Assistant Chief Deputy U.S. Marshal (EINY), GS-1811-14, advertised under announcement number MP A-08-265;
3. Supervisory Criminal Investigator (IOD-GREAT), GS-1811-14, advertised under announcement MPA-08-274; and
4. Chief Deputy U.S. Marshal (WINY), GS-1811-14, advertized under announcement number MPA-08-276.
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, through his attorney (Attorney), provided a letter to the AJ stating their intent to exit the EEO complaint process in favor of a civil action. Therefore, the AJ dismissed the hearing based on the Attorney's letter.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency first dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to raise the claim in a timely manner. The Agency noted that Complainant became aware of the alleged discrimination in October 2008. Therefore, the Agency found that Complainant should have made contact with the EEO Counselor by mid-December 2008, or at the very latest in mid-February 2009. However, the Agency determined that Complainant's contact on April 27, 2009, was beyond the 45 day time limit.
The Agency then addressed Complainant's claims of unlawful discrimination. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency stated that it provided legitimate, nondiscriminatory reasons for its actions. As for the internal investigation, the Agency indicated that Complainant along with other officials were investigated because eight District Security Officers (DSO) were hired by these individuals. The DSOs were found to not meet the basic job criteria and some were not even American citizens. The Agency indicated that investigation was complex and required additional time and attention to collect all the relevant data. During this time, Complainant had applied for four promotions. Complainant asserted that he was removed from consideration due to the internal investigation. The Agency found that Complainant's claim was unfounded. Complainant was considered for each of the four positions in question. Complainant ranked second for two of the positions, fourth for one of the positions, and fifth for the final position. The Agency then determined that Complainant failed to show that the Agency's reasons were pretext for discrimination. Accordingly, the Agency concluded that Complainant failed to establish that he was subjected to unlawful retaliation.
This appeal followed. On appeal, Complainant asserted that the Agency's dismissal of the complaint was not appropriate. Then Complainant argued that he established that the Agency's reasons were pretext for unlawful retaliation. Complainant stated that he was told by a senior U.S. Marshal (Marshal) that he would not be considered for the positions due to the investigations. Complainant argued that the evidence was uncontested and, therefore, he established that the Agency's reasons were pretext for unlawful retaliation. Therefore, Complainant asserted that the Commission should find in his favor.
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. (November 9, 1999) (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 note that by letter dated December 20, 2011, OFO notified the Agency of Complainant's appeal and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. Although the Agency submitted a brief in opposition to the appeal on January 24, 2012, it did not submit the complete complaint file as required. Therefore, on February 27, 2015, we issued a Notice to Show Good Cause Why Sanctions Should Not Be Imposed. In response to the Notice, the Agency provided the Commission the entire complaint file. The record is now ready to address Complainant's appeal.
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 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 persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. The record indicated that Complainant was subjected to an internal investigation, along with others, based on the Agency's discovery that he participated in the hiring of individuals who lacked basic qualifications for the position. The Agency noted that Complainant acknowledged that he failed to follow proper procedures when hiring the DSOs. Further, as to the promotions, the Agency showed that Complainant was listed on the best qualified lists for each of the four positions. Further, the evidence showed that Complainant was ranked below the selectees for each position. Therefore, the Agency asserted that Complainant had been considered for the positions, but was not selected as the best qualified candidate for any of the four positions.
We turn to Complainant to establish that the Agency reasons were pretext for discrimination. Complainant failed to provide evidence to show that the Agency's internal investigation was conducted in an improper manner. Further, Complainant argued that he provided uncontested evidence that the internal investigation blocked his consideration for the four positions. He based this on information provided to him by the Marshal. We note that the Marshal did not provide an affidavit and only Complainant has made this bare assertion. Rather, the evidence of record shows that Complainant was considered for each of the positions and was highly ranked in several of them, but was not selected as the best qualified. We note that on appeal, Complainant challenged the Agency's investigation asserting that the investigation of the EEO complaint was not complete. The record indicated that Complainant requested a hearing. However, based on the Attorney's letter to the AJ stating their wish to exit the EEO complaint process, the hearing was cancelled. Therefore, we find that Complainant could have supplemented the record during the hearing, but chose not to do so. Based on the evidence in the record, we find that Complainant has not proven, by a preponderance of the evidence, that his non-selections for the positions in question were based on unlawful retaliation.
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 (M0610)
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), at 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 (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 (Z0610)
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
May 12, 2015
__________________
Date
1 Complainant asserted that he refused to participate in the class action complaint filed by his supervisor against the Agency.
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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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