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

Equal Employment Opportunity Commission

Jun 23, 2020

2019003458 (E.E.O.C. Jun. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James T.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019003458 Agency No. BOP-2017-01144 DECISION On May 10, 2019, 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 April 19, 2019, 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. 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 an Education Specialist, GS-11 at the Agency’s Federal Correctional Institution, Terminal Island (FCI-Terminal Island) in San Pedro, California. On October 20, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (53), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when, in June 2017, he became aware he was not selected for the position of Disciplinary Hearing Officer (DHO), vacancy announcement number WR0-2017-001. 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. 2019003458 2 Complainant did not state any basis for his reprisal allegations; and the record does not include any information about past EEO filings. He however stated his belief that he was not selected for the position to which he applied because he had spoken up about being discriminated against, and because he was a black man approaching mandatory retirement age. He asserted that an FCI- Terminal Island Associate Warden of Programs (W1) held a grudge against him because Complainant had previously expunged an Incident Report that W1 had approved. Complainant also alleged that the former FCI-Terminal Island Warden did not like him because Complainant drove a nicer car than the Warden, and because Complainant was friendly with a female staff member with whom the Warden had an intimate relationship. According to Complainant, these factors may have played a role in his not being selected for the DHO position at issue. The Agency had dismissed Complainant’s claims that he was subjected to discrimination when he was not selected for various Supervisor of Education vacancies to which he applied in 2015 and 2016 for untimeliness. It explained that Complainant's first contact with an EEO Counselor occurred on July 11, 2017. The Agency however incorporated facts regarding Complainant’s hostile work environment allegations from the dismissed claims into the report of investigation for the instant complaint. The Agency stated that Complainant’s claim that he was not selected for the DHO position based on reprisal in the dismissed claims was held in abeyance pending a decision by the Commission in the Turner class action [Complainant v. Department of Justice, EEOC Appeal No. 0720110008 (Sept. 15, 2015)], pursuant to a 2010 AJ Order; and that the claim has been subsumed into the Turner class complaint. The record includes an April 2018 letter to Complainant indicating that subsuming the 2015 and 2016 reprisal claims was in accordance with a March 21, 2016, (date of the Notice of Class Action), decision defining the class as all Agency employees (nationwide), from January 1, 1994, to the present who have been denied promotions based upon the Agency's policy or pattern and practice of retaliating against employees because they engaged in protected EEO activity. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Letter, Complainant reiterates his allegations, asserting that the decision maker in his case failed to do his due diligence.2 The Agency did not submit an Appeal Brief. 2 We note that on appeal, Complainant alleged that he was discriminated against, and had to perform in a hostile work environment. He presented a group photo in which two lieutenants (supervisors) allegedly displayed “white power” hand gestures. Complainant alleged that when he 2019003458 3 STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS Dismissed Claims At the onset, we AFFIRM the Agency’s dismissal of Complainant’s discrimination and hostile work environment claims that occurred in 2015 and 2016 for untimeliness. The Commission’s regulations at 29 C.F.R. §1614.105(a)(l) state that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, or in the case of a personnel action within 45 days of the effective date of the action. Here, Complainant did not contact an EEO counselor until July 11, 2017, months after he became aware that he was not selected for positions to which he had applied. Even with the untimely EEO contact, Complainant could have requested, and received a time limit extension had he shown that such an extension was warranted. Under 29 C.F.R. § 1614.105(a)(2), an agency shall extend the 45-day time limit when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that, despite due diligence, he or she was prevented from contacting a counselor within the time limits by circumstances beyond his or her control, or for other reasons considered sufficient by the agency or Commission. However, there is no evidence that Complainant submitted an affidavit to show why he was untimely; and there is no evidence to suggest that he was unaware of the time limit. brought this matter to the associate warden, their resolution was to use a marker and distort their hands. However, it appears that this claim is being raised for the first time on appeal and the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Security, EEOC Appeal No. 01A40449 (Apr. 22, 2004). As such, we will not consider Complainant's new allegation. 2019003458 4 Disparate Treatment To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at n. 13. 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for his non-selection to the position to which he applied. Management explained that they selected the best-qualified candidate for the DHO position. Complainant was an Education Specialist who had about seven years of experience at FCI-Terminal Island as an alternate DHO; and his supervisor rated his supervisory/leadership skills as "Average." The selectee had been a Deputy Captain at FCC - Victorville, the exact institution where the position was located, for nearly seven years at the time of his selection; and had been involved in all aspects of the disciplinary process at that location. His supervisor rated his supervisory/leadership skills as "Above Average," slightly higher than the rating Complainant had received on the Reference Check form completed by the reviewing official as part of the vouchering process. Complainant presented no evidence to refute management’s explanations; and he failed to demonstrate that he was clearly better qualified than the selectee for the position at issue. The Commission supports the principle that, absent a showing that Complainant was the best-qualified candidate, management did not demonstrate discriminatory animus when the most qualified candidates are selected. See e.g., Judson v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141750 (May 26, 2016) (declining to find a pretext for discriminatory action when the Complainant was not selected due to his application rating of five out of eight candidates); Whitfield v. Dep't of the Army, EEOC Appeal No. 0120082612 (July 11, 2012) (finding that the Complainant failed to show discrimination when the Complainant's qualifications were not plainly superior to the selectees for two separate postings); King v. Dep't of Veterans Affairs, EEOC Appeal No. 012022423 (Nov. 2, 2012) (Complainant was not ranked among the top candidates and presented no evidence of pretext). In an effort to show pretext, Complainant contended that black men were not promoted to leadership positions as often as white men; and that he has been passed over for promotions because he is approaching mandatory retirement age. 2019003458 5 He however presented no persuasive evidence to support these contentions. Such evidence would include identifying other similarly situated black male employees who applied to and were not selected for leadership positions; and white male employees in his age group, and in his same circumstances who were treated more favorably by being selected to those positions when they were not best qualified. Therefore, his race and age discrimination allegations fail. See Aguilar v. U.S. Postal Service, EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). Complainant also failed to make out a sex discrimination claim because the selectee is, like him, male. Moreover, Complainant asserted that the Warden was biased against him but presented no persuasive evidence to support this assertion. 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. 2019003458 6 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 June 23, 2020 Date