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

Equal Employment Opportunity Commission

Sep 25, 2019

0120181396 (E.E.O.C. Sep. 25, 2019)

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

Ayana C.,1
Complainant,

v.

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

Appeal No. 0120181396

Agency No. BOP-2012-0788

DECISION

On March 16, 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
February 14, 2018 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance
Manager, GS-1910-11, at the Agency’s Federal Correctional Complex (FCC) in Beaumont, Texas.
Complainant retired from federal service in November 2016.

On January 30, 2012, the Agency issued Vacancy Announcement No. N-2012-0045 for a vacant
GS-1101-12 Factory Manager position at FCC-Beaumont. The announcement stated that only
“Reassignment Eligibles nationwide plus [Agency] Surplus and Displaced employees in the local
commuting area” were eligible for consideration.

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.
0120181396

2
The announcement explained that “Reassignment Eligibles” were current Agency employees
nationwide who may be considered for selection without competing for the position, including
lateral transfers; changes to a lower grade; or applicants “repromoting” to a grade previously held
on a permanent basis. Complainant did not apply for the vacancy. Complainant acknowledged
that she was not eligible for the position based on the criteria listed on the vacancy announcement
as she was not reassignment-eligible, was not a GS-12, and was not a displaced or a surplus
employee. Complainant stated that she discussed the vacancy announcement with her first-level
supervisor (S1) who informed her that a selectee had been recommended. Complainant noted that
the Selectee was already a GS-12 Factory Manager and alleged that the Agency made the decision
to announce the position as “reassignment-eligible only” to preselect her. Complainant argued she
should have been allowed to apply because she was a qualified candidate based on her supervisory
experience, acting experience as Factory Manager, prior performance evaluations, and experience
running the factory.

On August 22, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), age (47), and in reprisal for
prior protected EEO activity when:

1. In February 2012, Complainant was not selected for the position of Factory
Manager, under Vacancy Announcement N-2012-0045; and

2. Complainant was subjected to harassment which included humiliation,
intimidation, delayed leave approval, change of work schedule, and when her first-
line supervisor attempted to coerce her into reporting inaccurate accounting
practices.

The Agency accepted Claim 2 but dismissed Claim 1 for failure to state a claim. Following an
investigation of Claim 2, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected
her to a hostile work environment as alleged in Claim 2. On appeal, the Commission affirmed the
final agency decision with respect to Claim 2 but reversed and remanded Claim 1 for further
processing. Mandi G. v. Dep’t of Justice, EEOC Appeal No. 0120142528 (Sept. 1, 2016).

On March 21, 2017, the Agency informed Complainant that the reprisal-based portion of her
complaint would be held in abeyance because it was subsumed within a pending class action,
Turner, et al. v. Dep't of Justice, EEOC No. 541-2008-0255X. On remand, the Agency conducted
an investigation of Claim 1 and issued Complainant the supplemental report of investigation
(ROI). The Agency issued a final decision finding that Complainant had not proven she was
discriminated against as alleged in Claim 1. The instant appeal followed.

0120181396

3

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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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 Prods., Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No, 05950351 (Dec. 14, 1995).
According to the Agency, Complainant was not selected for the position because she did not apply.
Furthermore, Complainant did not meet the qualifications established for the position by the
Agency. Specifically, only current or former Agency employees who had attained the grade of the
vacant position (GS Level 12) were eligible to apply for the position. ROI at 182. For this reason,
Complainant, whose highest grade level was GS-11, was not eligible. ROI at 149. This is a
legitimate, nondiscriminatory reason for the Agency’s action.
Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Complainant contends that the qualifications required of applicants were imposed because the
Selectee had been preselected for the position. ROI at 164-65. Complainant alleges that the
Selectee was a friend of one of the managers involved in the selection process. ROI at 151.
However, evidence of preselection, without more, does not establish discrimination when the
preselection is based on the qualifications of the selected individual and not some prohibited basis.
0120181396

4
McAllister v. U.S. Postal Serv., EEOC Request No. 05931038 (July 28, 1994). Here, we find that
Complainant failed to present any persuasive evidence establishing that the Agency's selection or
the selection process were tainted by discriminatory animus.
As Complainant did not request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission can
only evaluate the facts based on the weight of the evidence presented. The Commission finds no
persuasive evidence that Complainant’s protected classes were a factor in any of the Agency’s
actions. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency’s reasons were not the real reasons and that the
Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. As
a result, the Commission finds that Complainant has not established that she was subjected to
discrimination as alleged.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we affirm the final agency 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.
0120181396

5
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

September 25, 2019
Date