[Redacted], Margaret L., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionJul 5, 2022Appeal No. 2021001450 (E.E.O.C. Jul. 5, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Margaret L.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021001450 Agency No. BOP-2018-0882 DECISION On December 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 17, 2020 final decision concerning her 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. BACKGROUND During the relevant time, Complainant worked as an Education Specialist, GS-1701-11, at the Agency’s Federal Correctional Complex in Butner, North Carolina (FCC-Butner). On August 14, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her based on race her (African-American), sex (female), age (49), and in reprisal for protected EEO activity (prior activity) when: 1. On July 11, 2018, she became aware she was not selected for the position of Supervisory of Education (“SOE”), under Vacancy Announcement Number SER- 2018-0052; 2 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. 2021001450 2 2. On July 19, 2018, Complainant received an unfavorable rating in the communication element on her quarterly evaluation; 3. On August 20, 2018, she became aware she was not selected for the position of Supervisor of Education, under Vacancy Announcement MXR-2018-0060; and 4. She was not afforded the opportunity to attend Curriculum Development training in Washington, D.C., during the week of September 10 - 14, 2018. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on November 17, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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; 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. See Texas Department of Community 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 Center v. Hicks, 509 U.S. 502 (1993). The evidence of record fully supports the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. During the relevant period, Complainant had held her Education Specialist position for 13 years and has been employed by BOP for 21 years. The Assistant Supervisor of Education was Complainant’s first-level supervisor and the Supervisor of Education was Complainant’s second- level supervisor. 2 The Agency held claims 1 and 3, on the basis of reprisal, in abeyance because of the pendency of a class action raising related claims. See Dennis Turner v. Michael B. Mukasey, Attorney General of the United States, Department of Justice, (Federal Bureau of Prisons), EEOC No. 541-2008-00255X, Agency File Nos. P-2000-0138, P-2004-0296. For that reason, claims 1 and 3, on the basis of reprisal only, were not addressed in the Agency’s final decision. 2021001450 3 Regarding claim 1, on July 11, 2018, she became aware she was not selected for the position of Supervisor of Education, under Vacancy Announcement Number SER-2018-0052. The Regional Director (Caucasian, male, 53) was the selecting official for the Supervisor of Education. He explained that the Warden, FCI-Jessup was the recommending official. He further stated that he reviewed the resumes and reference checks of the applicants that the recommending official recommended for the selection, and then made a selection. The Regional Director chose the selectee (Caucasian, male, under 40) for the Supervisor position based on his experience as a Special Education teacher. In addition, the selectee was found instrumental in the institution, having received a Superior Program Review in the Education Department and having served as the Literacy Coordinator and implemented the Self-Student General Educational Development (GED) Program aimed at helping inmates who are physically unable to attend classes or undergoing treatment, to continue to participate and work toward earning a GED. He also developed strategies which increased FMC-Butner’s enrollment as well as overall GED completions. Moreover, the Regional Director stated that the selectee served as the primary developer and as point-of-contact for writing the 2016 Special Education Curriculum for FCC- Butner and has a Master’s degree. The selectee’s performance rating for 2017-2018 was “Outstanding.” The Regional Director felt that in consideration of all the matters addressed above, the selectee was the best selection for this position. The Regional Director further acknowledged Complainant’s qualifications. He noted that Complainant had acted as the Assistant Supervisor of Education. She also served as the Education Coordinator in which she directed and managed education, recreation and the chapel units within a Federal Correctional Institution. He noted that Complainant was bilingual and had experience in the Affirmative Employment Program, as well as experience as the testing administrator for GED/CASAS. Complainant also had a Master’s degree. Complainant’s performance rating for 2017-2018 was “Exceeds.” The Warden. FCI-Jessup, Georgia (African American, male, 51) stated that while Complainant applied for the position of Supervisor of Education, he did not know her. He stated that there was a confidential Reference Check form was completed. The Warden stated that Complainant was one of three recommendations made. Moreover, the Warden stated that he was just a recommending official and the Regional Director was the selecting official for the subject position. Regarding claim 2, Complainant claimed that on July 19, 2018, she received an unfavorable rating in the communication element on her quarterly evaluation for the Communications element. She received an Exceeds, but believed she should have gotten an Outstanding. The Associate Warden (African American, male, 48), FCC-Butner, also Complainant’s former supervisor, stated that he was the reviewing official. He stated that he had a role in rating Complainant’s quarterly performance. Specifically, the Associate Warden stated that Complainant communicates well. 2021001450 4 The Supervisor of Education/Recreation (Caucasian, male, 47), FCC-Butner, also Complainant’s second line supervisor, stated that she received an Exceeds in communication. Regarding claim 3, Complainant stated that on August 20, 2018, she became aware she was not selected for the position of Supervisor of Education, under Vacancy Announcement MXR-2018- 0060. The Regional Director, Regional Director, Mid-Atlantic Region stated that she was the selecting official for the position of Supervisor of Education (MXR-2018-0060) position. She stated that Warden FCI-Manchester, Kentucky, was the recommending official. Specifically, the Regional Director stated that the Warden recommended four applicants, and Complainant was listed as fourth on his list of recommendations. The Regional Director stated that she chose the selectee (Caucasian, female, under age 40) for the Supervisor of Education position based on her extensive knowledge and background in education. Specifically, the selectee had served as the Acting Supervisor of Education in which she documented supervising 5-10 staff members. The selectee performed daily operations to include overseeing programs for over 1,100 inmates, inmate discipline, and numerous interactions with the Executive Staff regarding education activities. The selectee also taught the Career Transitions Class from 2010 to 2014, to prepare the inmates for mock job fairs, assist in resume writing and interview skills. The Regional Director stated that based on the above experience and the needs of FCI Manchester, the selectee was selected for the subject position. The Warden stated on February 9, 2018, FCI-Manchester received a Merit Promotion Certificate for Supervisor of Education. He stated that he was instructed by the Associate Warden who was responsible of oversight for the Education/Recreation department. He stated that he reviewed the certificate conducted reference checks for all applicants. The Warden explained Complainant received favorable reference checks. However, the selectee was deemed the top recommendation for the position, based on the qualification discussed above Regarding claim 4, Complainant alleged she was not afforded the opportunity to attend Curriculum Development training in Washington, D.C., during the week of September 10-14, 2018. The Administrator of the Women and Special Populations Branch (Caucasian, female, age 44), also the Acting Assistant Director of the Re-entry Services Division, Central. She explained that on August 30, 2018, she submitted a memorandum to the Complex Warden, Butner requesting a licensed teacher with expertise on literacy to be part of the service enhancement effort in Washington D.C. from September 11-13, 2018. The Administrator stated that selections were made based on recommendations from institutional and regional supervisors. ith respect to Complainant’s allegation that she was not afforded the opportunity to attend the Curriculum Development training in Washington D.C., the Administrator stated only teachers and supervisors were sought for this working group. At that time, Complainant was an education specialist. Therefore, Complainant’s name was not submitted to her for consideration. 2021001450 5 After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by Agency officials for the disputed actions were really a pretext designed to mask the true discriminatory or retaliatory motivations. With regard to the two non-selections, Complainant has not shown that the alleged disparities in qualifications between herself and the selectees are “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Similarly, Complainant failed to produce evidence of discrimination or retaliation with regard to her quarterly evaluation (where she received an above-average rating) and with regard to the Curriculum Development work group participation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021001450 6 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021001450 7 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 July 5, 2022 Date Copy with citationCopy as parenthetical citation