Manuel K.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionDec 17, 20192019004847 (E.E.O.C. Dec. 17, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Manuel K.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019004847 Agency No. BOP-2017-0609 DECISION On July 1, 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 June 27, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant was unlawfully discriminated against based on race, sex, and reprisal, when he was not selected for any of six Correctional Officer positions to which he applied. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer, GL-7, at the Agency’s Federal Detention Center in Honolulu, Hawaii. 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. 2019004847 2 On September 5, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American and Native American),2 sex (male), and in reprisal for prior protected EEO activity when on January 25 and 31, 2018, Complainant learned that he was not selected for any of the six following positions for which he applied: 1. Correctional Officer, vacancy BOP-N-2017-0012; 2. Correctional Officer, vacancy BOP-N-2016-0010; 3. Correctional Officer (senior officer), vacancy CRW-2017-0019; 4. Correctional Officer (senior officer), vacancy SEA-2016-0028; 5. Correctional Officer (senior officer), vacancy BAS-2017-0006; and 6. Correctional Officer (senior officer), vacancy BAS-2017-0017. 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 Administrative Judge (AJ). In accordance with Complainant’s request, 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 Complainant did not submit a statement or brief in support of his appeal. The Agency argues that, while Complainant establishes a prima facie case of unlawful discrimination based on race, sex, and reprisal, he fails to demonstrate that other similarly situated individuals, outside of his protected groups, were treated more favorably than he. The Agency states that Complainant was marked eligible for all six correctional officer positions for which he applied. The Agency argues that Complainant failed to demonstrate that others outside of his protected classes were treated more favorably and explains how the results of each vacancy demonstrates that failure. The Agency recounts how, for vacancy BOP-N-2017-0012, Complainant failed to submit a requested form and that failure resulted in his ineligibility and non-selection. No selections were made for vacancies SEA-2016-0028 and CRW-2017-0019; however, selections were made under an equivalent announcement to CRW-2017-0019. The Agency notes that Complainant only grieves, with regard to vacancy BOP-N-2016-0010, his non-selection for FCI Bastrop, however, he did not apply for that position under the vacancy. For vacancies BAS-2017-0006 and BAS-2017-0017, all but one of the selectees were the same sex as Complainant. Further, the Agency avers that Complainant failed to establish a causal connection between his non-selection and his prior EEO activity. The Agency argues that Complainant did not demonstrate unlawful discrimination on any of the bases he alleges. 2 The record indicates that Complainant identifies as African-American and Native American. 2019004847 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 (EEO MD-110), 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”). 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). 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. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency 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). Assuming, arguendo, that Complainant established a prima facie case of unlawful discrimination based on race, sex, and reprisal, we find that the Agency articulated a legitimate, non- discriminatory reason for its non-selection of Complainant in each of the Correctional Officer positions to which he applied. The record reflects that Complainant was not selected for vacancy BOP-N-2017-0012 due to his failure to submit a requested form. The second vacancy for which he alleged he was not selected, BOP-N-2016-0010, was one that Complainant only claims non- selection for a location to which he did not apply, and therefore, could never have been considered. The record also reflects that no selections were made for two more of the vacancies, SEA-2016-0028 and CRW-2017-0019, due to a hiring freeze. The final two vacancies, BAS- 2017-0006 and BAS-2017-0017, selected individuals who were also within the same protected class as Complainant. 2019004847 4 The record shows that the hiring officials were not aware of Complainant’s race, sex, or prior EEO activity. Additionally, during Complainant’s reference checks, Complainant was rated as ranging from “below average” to “above average” in different skill sets. The individuals selected for vacancies BAS-2017-0006 and BAS-2017-0017 were rated significantly higher than Complainant. The burden now shifts to Complainant to establish that the Agency’s reasons for the non- selections are pretext for discrimination on his claimed bases. Complainant could establish pretext by showing that his qualifications are observably superior to those of the selectees. See Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). We find that he has not shown that he was plainly superior to the selectees, although he was qualified and eligible. We conclude that Complainant has not established that the Agency’s reasons were a pretext for unlawful discrimination and retaliation. We affirm the Agency’s finding of no discrimination. 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 that Complainant was not discriminated against as alleged. 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. 2019004847 5 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. 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 December 17, 2019 Date Copy with citationCopy as parenthetical citation