| AGENCY ASSERTED MATERIAL FACTS | DISPUTED MATERIAL FACTS |
| At the time of events giving rise to this complaint in December 2018, Complainant Sarah Crane had served as Budget Analyst, GS-0560-09, in W/TN since 2011. ROI at 000126. | Undisputed. |
| Her age was 59. ROI at 000140. | Undisputed |
| Her race is Black. ROI at 000125. | Undisputed. |
| She alleged her disability was back injury (sciatica). ROI at 000125-000126. | Undisputed. |
| She had engaged in prior EEO activity. ROI at 000127 | Undisputed. |
| John Hall (age 63, White) has served as W/TN U.S. Marshal (USM) since 2010. ROI at 000127, 000149-000150. | Undisputed. |
| Walter Penn (age 57, White), Chief Deputy U.S. Marshal (CDUSM), W/TN, was Complainant’s second-line supervisor, and retired in December 2018. ROI at 000128, 000161, 000169, 000237. | Undisputed. |
| Elizabeth Channing, Administrative Officer (AO), W/TN, was Complainant’s first-line supervisor and retired in January 2019. ROI at 000127. The EEO investigator’s memorandum, dated May 16, 2019, noted that Ms. Channing declined to be interviewed. ROI at 000221. | Undisputed, in part. Glynda Irving, is the one who declined to be interviewed. ROI at 000221. |
| Greg Turner served as W/TN AO starting in or about December 2018 and was Complainant’s first-line supervisor after Ms. Channing retired. ROI at 000200, 000202. | Undisputed. |
| Mario Regent (age 57, White) served as District Asset Forfeiture Coordinator (DAFC) in the USMS Middle District of Tennessee (M/TN). ROI at 000175, 000237. | Undisputed. |
| Sara Day (age 29, Multiracial/Black/Spanish) served as Management and Program Analyst (MPA), AFD, at USMS Headquarters located in in Arlington, VA. ROI at 0000129, 000187, 000237. | Undisputed. |
| Complainant identified USM Hall, CDUSM Penn, AO Channing, DAFC Regent, and MPA Day as Responsible Management Officials in this case. ROI at 000002, 000237. | Undisputed in part. |
| Jane Ryan (age 41, White) worked in W/TN since 2012. ROI at 000043- 000047, 000140, 000234. From December 2012 to November 2018, she served as Administrative Support Assistant, GS-0303-07. ROI at 000043-000047. | Undisputed. |
| From April 2017 to July 2017, she was temporarily promoted to Investigative Research Specialist (IRS), GS-0301-09. ROI at 000043-000047. | Undisputed. |
| From November 2018 to approximately December 2018, she served as the IRS, GS-0301-09. ROI at 000043-000047. | Undisputed. |
| In an April 2017 memorandum, the Assistant Director of the Asset Forfeiture Division (AFD) apprised the U.S. Marshals, Chief Deputy U.S. Marshals, and Administrative Officers of the status of asset forfeiture resources. Ex. 1, ¶ 5. | Undisputed. |
| The crux of the memorandum was that budgetary restrictions implemented by the DOJ Asset Forfeiture Program (AFP) prompted AFD to evaluate its asset forfeiture workload across the country and “right size” the asset forfeiture workforce funded by the DOJ Assets Forfeiture Fund (AFF). Ex. 1, ¶ 5; ROI at 000215. | Undisputed. |
| In districts where diminishing asset forfeiture workloads were identified, rightsizing could result in consolidation of vendors providing services as contracts expire, not backfilling positions as they became vacant, consolidation of the asset forfeiture workload from a district with small workload into a larger district, or in some cases, phasing out or reassignment of a current position funded by AFD. Ex. 1, ¶ 5; ROI at 000215. | Undisputed. |
| When the W/TN DAFC gave notice she would retire in or about December 2018, W/TN management asked AFD to announce and backfill the W/TN DAFC position. ROI at 000165. | Undisputed. |
| In or about August 2018, after learning that the GS-0301-12 W/TN DAFC was scheduled to retire in January 2019, AFD evaluated the asset forfeiture workload of W/TN, which was responsible for the work of both W/TN and Northern District of Mississippi (N/MS), and identified W/TN as a district with a diminished asset forfeiture workload. Ex. 1, ¶ 6. | Undisputed. |
| At the time, the GS-0301-12 M/TN DAFC managed the asset forfeiture workload of M/TN and AFD identified M/TN as a district with a diminished asset forfeiture workload as well. Ex. 1, ¶ 6. | Undisputed. |
| There was a need to have an asset forfeiture presence in W/TN but backfilling the soon-to-be vacant GS-301-12 DAFC position with another GS-301-12 DAFC position would not have been fiscally responsible nor commensurate with the level of asset forfeiture work being performed. Ex. 1, ¶ 6. | Disputed. In an April 2017 memorandum, the Assistant Director of the Asset Forfeiture Division (AFD) stated that there were no plans to shrink the program but to refocus the workforce according to the workload. Ex. 1, ¶ 6. |
| In an effort to create a staffing model that was fiscally responsible and commensurate with the level of asset forfeiture work being performed, AFD proposed a new pilot staffing model for the three districts (W/TN, M/TN, and N/MS) in which the asset forfeiture workload of the three districts would be managed by a two-person staff consisting of the GS- 301-12 DAFC in M/TN and a lower graded GS-1101-09/11 PMS in W/TN who would work in support to the M/TN DAFC. Ex. 1, ¶ 7; ROI at 000165, 000178. | Undisputed. |
| The PMS position was an AFF-funded position in the W/TN district. Ex. 1, ¶ 8. | Undisputed. |
| The W/TN AO would serve as the PMS’ first-line supervisor who would issue his/her performance evaluations while the M/TN DAFC would manage and coordinate the asset forfeiture workload of the three districts (W/TN, M/TN, and N/MS) to ensure the workload was covered between himself and the PMS. Ex. 1, ¶ 8; ROI at 000163. | Undisputed. |
| AFD approached W/TN and M/TN management about implementing the new staffing model and coordinated with them to implement it. Ex. 1, ¶ 9. | Undisputed. |
| On or about September 21, 2018, W/TN management requested a vacancy announcement of a GS-1101-09 PMS position in W/TN (Position Description (PD) 29111, Agency only, Merit Promotion, Promotion Potential – Full Performance Level GS-11), with a note that the W/TN DAFC would be retiring in January 2019. Ex. 2 (Standard Form 52, Request for Personnel Action); see also ROI 000030-000033 (OF 8, Position Description, Property Management Specialist, GS-1101-09, Agency Position No. 29111). | Undisputed. |
| In or about October 2018, W/TN management advised AFD that a vacancy announcement for a PMS position, GS-1101-09 (Full Performance Level GS-11), would be posted. Ex. 1, ¶ 10. | Undisputed. |
| AFD’s new pilot staffing model was prompted by budgetary constraints, based on an assessment of the asset forfeiture workload of W/TN, M/TN, and N/MS, and grounded in efforts to create a staffing model that was fiscally responsible and commensurate with the level of asset forfeiture work. The new pilot staffing model was not based on any specific information about personnel in W/TN (such as race, age, etc.) or which personnel in W/TN would have been eligible to apply for the proposed PMS position in W/TN. Ex. 1, ¶¶ 5-8, 11. | Undisputed. |
| From November 19, 2018 to November 26, 2018, the Agency posted a vacancy announcement on www.usajobs.gov for a PMS position, GS-09, with promotion potential to GS-11, in W/TN, which was open to current USMS employees. ROI at 000022-000028; ROI at 000242-000000260 (USMS Policy Directive 3.10, Merit Promotion Plan). | Undisputed. |
| The vacancy announcement included information that the PMS position is within the Asset Forfeiture program and involved the seizure, management, and disposal of assets seized and forfeited from criminal activities; a description of the duties and responsibilities of the PMS position; and that the PMS position was not telework eligible. ROI at 000022-000023. | Undisputed. |
| Complainant applied for the PMS position and was referred to the interview panel. ROI at 000129; Ex. 3. | Undisputed. |
| Complainant’s application package included her resume and documents alleging she had Type 2 Diabetes. ROI at 000059-000075. | Undisputed. |
| Ms. Ryan applied for the PMS position and was referred to the interview panel. ROI at 000129; Ex. 4. Ms. Ryan’s application package included her resume. ROI at 000043-000057. | Undisputed. |
| W/TN CDUSM Penn participated on the interview panel since the PMS position was located in W/TN. ROI at 000129-000130, 000191. | Undisputed. |
| He was aware that Complainant’s race was Black. ROI at 000161. He did not know Complainant’s exact age. ROI at 000161. | Disputed.He had access to Complainant’s resume, which he went through. So, he reasonably was aware of Complainant’s age. ROI at 000161. |
| He was aware of Complainant’s prior EEO activity which he believed was one or two years ago. ROI at 000162. | Undisputed. |
| He was aware that Complainant claimed a disability but was not sure of the exact disability claimed. ROI at 000162-000163. | Disputed.He had access to Complainant’s resume, which he went through. So, he reasonably was aware of Complainant’s disability. ROI at 000162-000163. |
| He did not know Complainant was claiming a back injury. ROI at 000163. | Disputed.He had access to Complainant’s resume, which he went through. So, he reasonably was aware of Complainant’s disability. ROI at 000163. |
| M/TN DAFC Regent participated on the interview panel since he would manage and coordinate the asset forfeiture workload of the three districts (W/TN, M/TN, and N/MS) to ensure the workload was covered between himself and the PMS. ROI at 000129, 000163, 000191. | Undisputed. |
| He believed Complainant’s race was African American. ROI at 000176. He did not know Complainant’s age. ROI at 000176. | Disputed in part. He had access to Complainant’s resume, which he went through. So, he reasonably was aware of Complainant’s age. ROI at 000176. |
| He did not know if Complainant had any prior EEO activity. ROI at 000176. | Disputed.He had access to Complainant’s resume, which he went through. So, he reasonably was aware that Complainant had prior EEO activity. ROI at 000176. |
| He recalled that Complainant’s resume alleged she had Type II diabetes. ROI at 000176-000177. | Undisputed. |
| AFD MPA Day participated on the interview panel at the request of W/TN management since the PMS position was an AFF-funded position. ROI at 000129, 000163- 000164, 000177, 000187, 000191-000193. | Undisputed. |
| MPA Day was not a W/TN district employee but worked at USMS Headquarters located in Arlington, VA. ROI at 000129, 000187; Ex. 1, ¶ 1. | Undisputed. |
| AFD selected MPA Day to participate on the interview panel since she was a subject matter expert for district asset forfeiture operations and had prior experience participating on interview panels. ROI at 000190. | Undisputed. |
| She believes Complainant’s race is Black. ROI at 000189. She did not know Complainant’s age. ROI at 000189. | Disputed in part. She had access to Complainant’s resume, which she went through. So, she reasonably was aware of Complainant’s age. ROI at 000189. |
| She did not know if Complainant had any prior EEO activity. ROI at 000189-000190. | Disputed.She had access to Complainant’s resume, which she went through. So, she reasonably was aware that Complainant had prior EEO activity. ROI at 000189-000190. |
| She was not aware of Complainant’s alleged disability. ROI at 000190. | Disputed.She had access to Complainant’s resume, which she went through. So, she reasonably was aware of Complainant’s disability. ROI at 000190. |
| USM Hall was the selecting official and was not involved in the interview process for the PMS position. ROI at 000164; see also Ex. 5 and Ex. 6. | Undisputed. |
| He is aware that Complainant’s race is Black. ROI at 000151. | Undisputed. |
| He did not know Complainant’s age. ROI at 000151. | Undisputed. |
| He knew references had been made about Complainant’s prior EEO activity. ROI at 000151. | Undisputed. |
| He believes Complainant alleged a knee injury a year ago but was not aware she was now claiming a back injury. ROI at 000152. | Undisputed. |
| He believes Complainant alleged a knee injury a year ago but was not aware she was now claiming a back injury. ROI at 000152. | Undisputed. |
| On December 13, 2018, the interview panel interviewed Complainant. ROI at 000077-000081, 000092-000101. | Undisputed. |
| On December 13, 2018, the interview panel interviewed Ms. Ryan. ROI at 000082-0000000091, 000102-000106. | Undisputed. |
| The interview panel used a structured interview consisting of a pre-determined set of questions (Questions #1-14) created by AFD on a form, Applicant Interview Form, U.S. Marshals Service – Asset Forfeiture Division. ROI at 000164-000165. | Undisputed. |
| For each candidate, interview panel members completed the form during the interview. ROI at 000077-000106. | Undisputed. |
| Each interview panel member gave a rating or score (ranging from 1 to 5) to each candidate for each question (Questions 1-13)2 based their performance during the interview, tallied the scores of each candidate, and made a selection recommendation based on the scores. ROI at 000164-000165, 000177, 000179, 000191-000192. | Undisputed. |
| Specifically, the interview panel assessed which candidate was better suited for the position in terms of work experience, history, and how they answered the questions. ROI at 000192. | Undisputed. |
| Every interview panel member rated Ms. Ryan with overall scores (49, 50, and 48) that were significantly higher than Complainant’s (32, 35, and 32). ROI at 000081, 000086. | Undisputed. |
| For every interview question, Ms. Ryan received a score that was equal to or higher than Complainant. ROI at 000081, 000086. | Undisputed. |
| For every interview question, Ms. Ryan received a score that was equal to or higher than Complainant. ROI at 000081, 000086. | Undisputed. |
| MPA Day noted that Ms. Ryan, in her current position, was essentially performing the PMS position but in a different context. ROI at 000192. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. Besides, MPA Day was biased towards Complainant after Complainant’s supervisor informed MPA Day that she had issues with Complainant. ROI at 000131. |
| MPA Day specifically noted that Ms. Ryan had performed asset forfeiture work for the Financial Litigation Unit (FLU) in the U.S. Attorney’s Office (USAO) and worked with the USAO; attended asset forfeiture training; worked with finding contractors, conducting solicitations, and requesting bids, which are similar to the duties and responsibilities of the PMS position; performed the duties related to civil process on the district side, similar to civil process on the asset forfeiture side; and conducted inspections and worked with third party claimants on the district side, again similar to the work on the asset forfeiture side. ROI at 000192-000193. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. Besides, MPA Day was biased towards Complainant after Complainant’s supervisor informed MPA Day that she had issues with Complainant. ROI at 000131. |
| According to MPA Day, Ms. Ryan’s work experience made her more familiar with the asset forfeiture process and program than Complainant. ROI at 000193. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. Besides, MPA Day was biased towards Complainant after Complainant’s supervisor informed MPA Day that she had issues with Complainant. ROI at 000131. |
| CDUSM Penn expressed concern over Complainant’s lack of AFD experience. ROI at 000100. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. |
| DAFC Regent circled his rating (1 to 5) for each question per candidate but did not tally his ratings. ROI at 000087-000096. | Undisputed. |
| However, the ratings he circled for each candidate total the overall score for each candidate by each interview panel member (including DAFC Regent) on Ms. Day’ Applicant Interview Form. ROI at 000081, 000086. | Undisputed. |
| DAFC Regent found Complainant to be very knowledgeable about budget and finance but not asset forfeiture functions. ROI at 000095, 000180. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. |
| In discussing Questions #4 and #6 with each candidate, DAFC Regent and MPA Day asked about the candidate’s ability to perform the job and to reiterate or remind the candidate that the position was not telework eligible since the PMS position required working with DAFC Regent who was located in another district (M/TN), going out to the field, and traveling to conduct on-site inspections. ROI at 000168-000169, 000180-000181, 000194 | Undisputed. |
| Complainant testified that neither she nor the interview panel members raised or discussed her purported disability during the interview. ROI at 000134. | Disputed.Claimant was asked several times about whether or not she would be physically able to go out on the sites to look at the property. ROI at 000134. |
| The interview panel determined that of the two candidates, Ms. Ryan was qualified (suitable for the position) and the most qualified candidate. ROI at 000085, 000105, 000166. | Disputed. Complainant is also highly experienced. She has eight years’ prior experience in addition to other government service time doing Property Management Specialist. She has a certified administrative professional certification. She has a defense acquisition workforce, which is level one certification. She has served as a COTR, which is a Contracting Officer’s Representative, for eight years for the Navy and also served as a COTR for two or three years with the Department of Justice. ROI at 000132. |
| CDUSM Penn briefed USM Hall on the interviews and advised him of the interview panel’s recommendation to select Ms. Ryan for the PMS position. ROI at 000164. | Undisputed, to the extent the said event happened. |
| On December 20, 2018, USM Hall did not select Complainant for the PMS position. Ex. 5. | Undisputed. |
| On December 20, 2018, USM Hall selected Ms. Ryan for the PMS position. Ex. 6. | Undisputed, to the extent the said event happened. |
| On December 21, 2018, Complainant contacted the Agency’s Office of EEO. ROI at 000013, 000015. | Undisputed. |
| On March 10, 2019, Complainant filed an EEO complaint, alleging the Agency discriminated against her based on race (Black), physical disability, age (60), and reprisal when she was not selected for the position of PMS, GS-1101-09/11, in W/TN. ROI at 000013. | Undisputed. |
At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )
