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

Equal Employment Opportunity Commission

Sep 11, 2019

0120181979 (E.E.O.C. Sep. 11, 2019)

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

Leon B.,1
Complainant,

v.

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

Appeal No. 0120181979

Hearing No. 450-2016-00158X

Agency No. BOP-2014-0748

DECISION

On May 21, 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
April 24, 2018, final order concerning his equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 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 order.

ISSUE PRESENTED

The issue presented is whether substantial evidence in the record supports the conclusion of the
Equal Employment Opportunity Commission Administrative Judge (AJ) that the preponderance
of the evidence does not establish that Complainant was subjected to discrimination based on
disability and/or age when he was not selected for a Legal Instruments Examiner position.

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.
0120181979

2

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a WS-6907-04
Material Handler Supervisor at the Agency’s Federal Medical Center (FMC) Carswell facility in
Fort Worth, Texas. Complainant was born in June 1963, and he was 50 years old at the time of
events giving rise to this complaint. According to Complainant, he is a Gulf War veteran and has
two service-connected disabilities: a respiratory problem and post-traumatic stress disorder
(PTSD). Complainant stated that he was diagnosed with these impairments when he was
medically discharged from the military in 1993. According to the record, the Department of
Veterans Affairs rated Complainant’s service-connected disabilities as 80 percent compensable.

In February 2014, Complainant timely applied for a GS-0963-06/07 Legal Instruments Examiner
(LIE) position at the Agency’s Designation and Sentence Computation Center (DSCC) in Grand
Prairie, Texas, which was advertised under vacancy announcement number GRA-2014-0021.
The DSCC computes the release dates for inmates throughout the Agency after they are
sentenced, considering factors such as credits for time served or good behavior. According to the
vacancy announcement, there were five vacant positions. The LIE position had promotion
potential to GS-09, and Complainant applied for the position at the GS-07 level. Complainant
applied for dual consideration as a merit promotion applicant and as a 30 percent or more
disabled veteran. According to Complainant, he had applied for the same position in 2012 and
2013, but he was not selected.

The Agency generated six certificates of eligibles for vacancy announcement number GRA-
2014-0021: (1) two Grade 6 applicants eligible for noncompetitive consideration as 30 percent or
more disabled veterans as exceptions to merit promotion procedures; (2) one Grade 6 applicant
eligible for noncompetitive consideration as an exception to merit promotion procedures; (3) 10
Grade 6 merit promotion plan applicants deemed Best Qualified for the position; (4) three Grade
7 applicants eligible for noncompetitive consideration as 30 percent or more disabled veterans as
exceptions to merit promotion procedures; (5) three Grade 6 applicants eligible for
noncompetitive consideration as exceptions to merit promotion procedures; and (6) eight Grade 7
merit promotion plan applicants deemed Best Qualified for the position.

Complainant was referred on certificates 4 and 6. The selecting official for the LIE vacancy was
the DSCC Chief (SO, born 1961). According to the record, SO and Complainant did not know
each other. SO stated that he was unaware of the age or the disability of any of the candidates
when he made the selection decisions. According to SO, he did not conduct interviews for the
LIE vacancies because the vacancy announcement was only open to internal candidates, and he
stated that he selected the best-qualified candidates based on their application materials and the
result of reference checking. According to SO, at least one reference for each candidate on the
six certificates had been contacted before he received the application materials. SO stated that he
contacted additional references for his top candidates after reviewing the applications and the
reference-checking that had already been conducted.

0120181979

3
SO selected four individuals for the LIE position: C1 (born March 1987), C2 (born February
1961), C3 (born May 1977), and C4 (born August 1972).2 SO selected C1 from certificate 3,
selected C2 from certificate 5, and he selected C3 and C4 from certificate 6. SO averred that C1
worked as an Administrative Assistant at the DSCC for approximately three months prior to
submitting her application and that she had demonstrated superior work while at the DSCC.
According to SO, although C1 was relatively new, she was a quick learner, and she had a
master’s degree. SO stated that C2 had 11 years of directly relevant experience, including
working as a GS-11 Correctional Treatment Specialist/Case Manager at a previous facility,
which had involved classifying and computing sentences in a manner similar to the LIE work at
the DSCC. According to SO, C3 had 10 years of relevant experience as a Releasing and
Discharge Officer and used the same electronic database as the DSCC. SO stated that C4 had
worked as an Administrative Assistant at the DSCC for two years and was very familiar with the
electronic database and DSCC procedures. According to the record, SO contacted additional
references for C1, C2, C3, and C4, but he did not contact additional references for Complainant.

Complainant stated that he was qualified for the LIE position because he has a bachelor’s degree
in criminal justice because he was a GS-07 Inmate Systems Officer from 2002 to 2005 and
performed work that is similar to the work performed by a LIE in the DSCC. According to SO,
Complainant’s three years of experience as an Inmate Systems Officer was relevant, but
Complainant had less directly relevant experience than some of the selectees. SO stated that the
way Complainant described this experience on his application reflected that he worked with
sentence computation data but not that he actually performed computations. A Human Resources
employee from Grand Prairie (HR) contacted the Acting Captain (AC, born 1980) at FMC
Carswell to provide a reference for Complainant. According to AC, he told HR that he had only
occasionally supervised Complainant when he was working overtime and that he had limited
information about Complainant. AC averred that HR told him to provide feedback based on the
limited information that he had. AC stated that he remembered rating Complainant average in all
or nearly all of the categories. The record contains AC’s 2014 reference for Complainant, which
indicates that Complainant was average in administrative skills, written communication skills,
technical expertise, and analytical ability and above average in oral communication skills and
responsiveness; that Complainant had no known disciplinary actions; and that AC would employ
Complainant in the position. AC stated that he was unaware of Complainant’s age or disability
when he was contacted to provide the reference.

The record contains a previous reference from Complainant’s supervisor (S1), which was
requested when he applied for the LIE position in 2013. S1 rated Complainant as average in
administrative skills, written communication skills, technical expertise, and analytical ability and
above average in oral communication skills and responsiveness and noted that Complainant was
very loyal, that he had no known disciplinary actions, and that S1 would employ Complainant in
the position if he would be provided with appropriate training.

2 During the investigation, the Agency stated that it did not have records indicating that C1, C2,
C3, or C4 had a disability.
0120181979

4
Complainant initiated contact with an EEO Counselor on June 11, 2014. On September 16, 2014,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of disability (respiratory problem and PTSD) and age (50 years old) when on June 5, 2014,
he learned that he had not been selected for one of the Legal Instruments Examiner positions
advertised under vacancy announcement number GRA-2014-0021.

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 EEOC AJ.
Complainant timely requested a hearing. The AJ held a hearing on February 26, 2018 and issued
a decision on March 15, 2018.3

The AJ determined that Complainant presented no credible evidence that the Agency’s
legitimate, nondiscriminatory reason was a pretext for unlawful discrimination because his
testimony consisted of pure speculation that disability and/or age played a role. The AJ made
various findings of fact, including that SO was not aware of Complainant’s disability or age
when he made the selections. The AJ found that Complainant established a prima facie case of
discrimination with respect to his nonselection, but he concluded that Complainant failed to
establish that the Agency’s legitimate, nondiscriminatory reason for not selecting him was
pretextual. The Agency subsequently issued a final order fully implementing the AJ’s finding
that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was disadvantaged because his reference from AC did
not come from his supervisor and because SO did not ask for a second reference, as SO did for
the selectees. Complainant also argues that he should have been selected because of his veterans’
preference. According to Complainant, SO was aware of his disability because he was listed as
eligible for noncompetitive consideration as a 30 percent or more disabled veteran, and he was
aware of his age because of the years of federal service reflected on his resume.

In response to Complainant’s appeal, the Agency contends that veterans’ preference does not
apply to actions such as promotion, reassignment, change to lower grade, transfer, or
reinstatement. According to the Agency, Complainant’s name appropriately appeared on
certificates 4 and 6, but SO was not obligated to select the applicants who were eligible for
noncompetitive considerations because they were veterans with a 30 percent or more
compensable disability. The Agency argues that the AJ incorrectly found that Complainant
established a prima facie case of discrimination, but the Agency requests that its final order be
affirmed because the AJ correctly concluded that Complainant failed to establish pretext for
discrimination.

3 The AJ issued a bench decision immediately after the February 26, 2018, hearing but the
transcript of the bench decision was not issued until March 15, 2018.
0120181979

5
ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony, or the testimony so lacks in
credibility that a reasonable fact-finder would not credit it. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614, Chap. 9, at § VI.B. (Aug. 5, 2015). We see no
basis for disturbing the AJ’s post-hearing credibility determinations or factual findings.

Complainant alleged that he was discriminated against when he was not selected for one of the
vacant LIE positions. To prevail in a disparate treatment claim, 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 generally 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since 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 Products, 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). In a selection case, a complainant can attempt to prove pretext by showing that his
qualifications are “plainly superior” to those of the selectee. See Patterson v. Dep’t of the
Treasury, EEOC Request No. 05950156 (May 9, 1996).

Assuming, without so finding, that Complainant established a prima facie case, the Agency’s
legitimate, nondiscriminatory explanation for not selecting Complainant for a LIE position was
that he had less directly relevant experience than C1, C2, C3, and C4. Complainant argues that
SO was aware of his disability because he was listed as a veteran with a disability and that SO
was aware of his age because of the number of years of federal service reflected on his
application. However, we find the AJ’s factual finding that SO was not aware of Complainant’s
age or disability is supported by substantial evidence in the record. As further evidence of
pretext, Complainant contends that he was disadvantaged because AC was not his direct
supervisor and because SO did not contact an additional reference. With respect to AC providing
a reference despite a lack of familiarity with Complainant’s work, we note that AC gave
Complainant the same ratings in 2014 as his first-line supervisor S1 did in 2013.
0120181979

6
Furthermore, the record reflects that SO only contacted additional references for his top
candidates, and SO stated that Complainant was not a top candidate because his application did
not detail as much directly relevant experience as the applications of C1, C2, C3, and C4. We
find that Complainant has not established by the preponderance of the evidence in the record that
the Agency’s proffered legitimate, nondiscriminatory reason was pretextual.

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 order fully implementing the AJ’s
determination that the preponderance of the evidence in the record did not establish that
discrimination occurred.

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.
0120181979

7
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 11, 2019
Date