JUDGMENT

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Memphis District Office

____________________________________

Sarah Crane,                                                 )          

            Complainant                                        )

                                                                        )

  •             )           EEOC Case No. 540-000-0000X

)          

)           Agency Case No. USM-2020-00000

DOJ U.S. Marshals Service,                         )

            Agency                                    )           DATE:

___________________________________  )

COMPLAINANT’S OPPOSITION TO AGENCY’S MOTION FOR SUMMARY JUDGMENT

COMES NOW [NAME] (“Complainant”), by and through designated co-representative, and hereby files this Complainant’s Opposition to Agency’s Motion for Summary Judgment requesting that the Agency’s Motion be denied, and the case proceed to hearing. Complainant states as follows:

I.          ACCEPTED ISSUE(S)

Whether Complainant was discriminated against based on race (Black), disability (back injury), age (60), and reprisal (filed prior EEO Complaint) when, on December 21, 2018, she learned she was not selected for the position of Property Management Specialist, GS-1101-9/11 in the Western District of Tennessee.

II.        STATEMENT OF UNDISPUTED MATERIAL FACTS

  1. 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. Her age was 59. ROI at 000140. Her race is Black. ROI at 000125. Her disability was back injury (sciatica). ROI at 000125-000126. She has engaged in prior EEO activity. ROI at 000127.
  2. John Hall (age 63, White) has served as W/TN U.S. Marshal (USM) since 2010.

ROI at 000127, 000149-000150.

  • 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.
  • Elizabeth Channing, Administrative Officer (AO), W/TN, was Complainant’s first-line supervisor and retired in January 2019. ROI at 000127.
  • Greg Taylor 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.
  • 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.
  • Julia Simmons (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.
  • Complainant identified USM Hall, CDUSM Penn, AO Channing, and DAFC Regent as Responsible Management Officials in this case. ROI at 000002, 000237.
  • 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. From April 2017 to July 2017, she was temporarily promoted to Investigative Research Specialist (IRS), GS-0301-09. ROI at 000043-000047. From November 2018 to approximately December 2018, she served as the IRS, GS-0301-09. ROI at 000043-000047. USMS Asset Forfeiture Division.
  • 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 (of Agency’s Motion for Summary Judgment), ¶ 5.
  • 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 (of Agency’s Motion for Summary Judgment), ¶ 5; ROI at 000215.
  • 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.
  • 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.
  • 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 (of Agency’s Motion for Summary Judgment), ¶ 6.
  • 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 (of Agency’s Motion for Summary Judgment), ¶ 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.
  • The PMS position was an AFF-funded position in the W/TN district. Ex. 1, ¶ 8.
  • 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.
  • AFD approached W/TN and M/TN management about implementing the new staffing model and coordinated with them to implement it. Ex. 1, ¶ 9.
  • 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).
  • 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.
  • 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.
  • From November 19, 2018 to November 26, 2018, the Agency posted a vacancy announcement on www.usajobs.gov1 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).
  • 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.
  • Complainant applied for the PMS position and was referred to the interview panel. ROI at 000129; Ex. 3.
  • Complainant’s application package included her resume and documents alleging she had Type 2 Diabetes. ROI at 000059-000075.
  • 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.
  • W/TN CDUSM Penn participated on the interview panel since the PMS position was located in W/TN. ROI at 000129-000130, 000191.
  • He was aware that Complainant’s race was Black. ROI at 000161.
  • He was aware of Complainant’s prior EEO activity which he believed was one or two years ago. ROI at 000162.
  • 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.
  • He believed Complainant’s race was African American. ROI at 000176.
  • He recalled that Complainant’s resume alleged she had Type II diabetes. ROI at 000176-000177.
  • AFD MPA Simmons 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.
  • MPA Simmons was not a W/TN district employee but worked at USMS Headquarters located in Arlington, VA. ROI at 000129, 000187; Ex. 1, ¶ 1.
  • AFD selected MPA Simmons 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.
  • She believes Complainant’s race is Black. ROI at 000189.
  • 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.
  • He is aware that Complainant’s race is Black. ROI at 000151.
  • He did not know Complainant’s age. ROI at 000151.
  • He knew references had been made about Complainant’s prior EEO activity. ROI at 000151.
  •  He believes Complainant alleged a knee injury a year ago but was not aware she was now claiming a back injury. ROI at 000152.
  • On December 13, 2018, the interview panel interviewed Complainant. ROI at 000077-000081, 000092-000101.
  • On December 13, 2018, the interview panel interviewed Ms. Ryan. ROI at 000082-0000000091, 000102-000106.
  • 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.
  • For each candidate, interview panel members completed the form during the interview. ROI at 000077-000106.
  • Each interview panel member gave a rating or score (ranging from 1 to 5) to each candidate for each question (Questions 1-13) 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.
  • 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.
  • 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.
  • For every interview question, Ms. Ryan received a score that was equal to or higher than Complainant. ROI at 000081, 000086.
  • DAFC Higgins circled his rating (1 to 5) for each question per candidate but did not tally his ratings. ROI at 000087-000096.
  • However, the ratings he circled for each candidate total the overall score for each candidate by each interview panel member (including DAFC Higgins) on Ms. Matos’ Applicant Interview Form. ROI at 000081, 000086.
  • In discussing Questions #4 and #6 with each candidate, DAFC Regent and MPA Simmons 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.
  • 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.
  • On December 20, 2018, USM Hall did not select Complainant for the PMS position. Ex. 5.
  • On December 20, 2018, USM Hall selected Ms. Ryan for the PMS position. Ex. 5.
  • On December 21, 2018, Complainant contacted the Agency’s Office of EEO. ROI at 000013, 000015.
  • 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.

III.       MATERIAL FACTS IN DISPUTE

  • Complainant is highly experienced for the job. 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.
  • The members of the interview panel had access to Complainant’s resume, which they went through. So, they reasonably were aware of Complainant’s age, and disability.  ROI at 000161, 000162-000163, 000176, 000189, 000190.
  • MPA Day was biased towards Complainant after Complainant’s supervisor informed MPA Day that she had issues with Complainant. ROI at 000131.

IV. APPLICABLE LEGAL STANDARD TO SUMMARY JUDGMENT

Pursuant to 29 C.F.R §1614.109(g), a party is entitled to a decision without a hearing, or summary judgment if there are no genuine issues of material facts in dispute.  The moving party must demonstrate that there are no genuine issues of material facts in dispute.  Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A genuine dispute of material fact exists if the evidence is such that a reasonable factfinder could find in favor of the nonmoving party.  Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).  The non-moving party must demonstrate that there exist factual disputes that require a fact finder to resolve the party’s different versions of the truth at trial.  Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248-249 (1986).    

 In opposing summary judgment, the nonmoving party must identify specific evidence that raises a genuine issue of material fact.  Hanley v. Postmaster General, EEOC Appeal No. 01960603 (1998). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, a decision without a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11, 2003), additionally, it may also be inappropriate to issue a summary judgment where the veracity of witnesses is crucial or issues of motive or intent are involved. Schwapp v. Town of Avon, 118 F.3d 106 (2nd. Cir. 1997) (Court is “particularly cautious” in granting summary judgment when defendant’s intent is at issue). 

Once the moving party meets its burden, the opposing party must come forward with specific facts, to show that a genuine issue remains for trial.  DeHorney v. Bank of America Nat. Trust & Sav. Assoc., 879 F.2d 459 (9th Cir. 1989).  In Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998), the D.C. Circuit held, inter alia, that a plaintiff is not limited to challenging an employer’s explanation for its action to defeat summary judgment. Id. at 1295, n.11.  A plaintiff may defeat a motion for summary judgment and prevail at trial by presenting other evidence that permits an inference of discrimination.  Id.  Moreover, in Anderson, the Supreme Court held that in ruling on summary judgment motions, a court cannot weigh the evidence or grant summary judgment merely because it believes that the nonmoving party will lose at trial.  Anderson, at 249.  

In certain cases, summary judgment is clearly inappropriate and precluded, such as, where there are factual disputes, where the veracity of witnesses is crucial, or where issues of motive or intent are involved.  Schwapp v. Town of Avon, 118 F.3d 106 (2nd. Cir. 1997) (court is particularly cautious in granting summary judgment when defendant’s intent is at issue); Grier v. Medtronic Inc., 99 F.3d 238, 240 (7th Cir. 1996) (applying summary judgment standards with “especial scrutiny” where cases turn on issues of intent or credibility); Hossaini v. Western Missouri Medical Center, 97 F.3d 1085, 1088 (8th Cir. 1996) (recognizing the difficulty of disposing of intent issues at the summary judgment stage). 

In addition, the EEOC goes further than the courts in concluding that summary judgment cannot be granted where there is a genuine issue as to credibility.  29 C.F.R. § 1614.109(g).  In Thomas v. Postmaster General, EEOC Appeal No. 01890469 (1989), the Commission reversed an entry of summary judgment, finding that the conclusory affidavit of a selecting official as to who was the best qualified candidate did not dispense with the factual dispute because the affidavit was a mere opinion.  Credibility issues are not ripe for summary judgment in Commission cases because an administrative judge, unlike a federal judge, is charged as a fact-finder at hearing which is an extension of the investigative process.  See Sampson v. Attorney General, EEOC Appeal No. 01942844 (1996)(overturned on other grounds).  Likewise, an administrative judge may not rely solely on representation of agency counsel in finding that there is no genuine issue of material fact.  Daley v. Secretary of Treasury, EEOC Appeal No. 01960094 (1997).  The administrative judge should pay attention to questions in the factual record and complainant’s contrary representations. Id.  See also, Pederson v. Dept. of Justice, Federal Bureau of Prison, EEOC Appeal No. 05940339 (1995); Bang v. Postmaster General, EEOC Appeal No. 01961575 (1998). 

In Pederson, the appellant filed a formal complaint alleging that she was discriminated against on the basis of her sex when she was not allowed to attend a professional conference and when she was denied a pay increase.  The EEOC administrative judge issued a decision on the merits of the appellant’s complaint without holding a hearing.  The agency issued a final decision finding no discrimination.  On appeal, the Commission initially affirmed the agency’s decision; however, upon review of the appellant’s request for reconsideration, the Commission vacated its previous decision.  The Commission in Pederson found that the administrative judge improperly relied solely on the representations of the agency witnesses, while ignoring gaps in the record and appellant’s contrary representations. 

V.        COMPLAINANT IS ABLE TO ESTABLISH A PRIMA FACIE CASE OF DISCRIMINATION BASED ON AGE, DISABILITY, AND RACE.

The Complainant has the initial burden of proving prima facie case of discrimination.  McDonnell Douglas Corp. v Green, 411 U.S. 792, 802 (1973).  Once the Complainant establishes a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions.  Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).     The Complainant must then, by a preponderance of the evidence, establish that the Agency’s explanation is pretext for discrimination.  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). 

To establish a prima facie claim of discrimination, the plaintiff must show “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citation omitted), aff’d, 566 U.S. 30 (2012); see Matias v. Elon Univ., 780 F. App’x 28, 31 (4th Cir. 2019); Goode v. Cent. Va. Legal Aid Soc., Inc., 807 F.3d 619, 626 (4th Cir. 2015).

In this case, the Complainant is in a protected class based on race, age, and her disability status. Notably, it is undisputed that Complainant is black. ROI at 000161. She is also 60 years old. Lastly, Complainant suffers a disability from a back injury ROI at 000130. The members of the interview panel had access to Complainant’s resume, which they went through. So, they reasonably were aware of Complainant’s age, and disability.  ROI at 000161, 000162-000163, 000176, 000189, 000190.

Next, the Complainant was qualified for the position. 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.

The Complainant was rejected for the advertised position based on the panel’s discriminatory conduct. ROI at 000085, 000105, 000166.

An employee outside of the Complainant’s protected class was selected for the position. The panel chose Ms. Ryan, who was out of Complainant’s protected class. ROI at 000085, 000105, 000166.

VI.       THE AGENCY’S REASON FOR CHOSING MS. RYAN IS PRETEXT FOR DISCRIMINATION

            The Agency has articulated what it alleges to be a Legitimate Nondiscriminatory Reason for its actions.  The Agency stated that of the two candidates, Ms. Ryan was qualified (suitable for the position) and the most qualified candidate. ROI at 000085, 000105, 000166. One of the panel members MPA Simmons also alleged that Ms. Ryan’s work experience made her more familiar with the asset forfeiture process and program than Complainant. ROI at 000193. And 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.

            The Agency’s reason is a pretext for covering up the discrimination. Notably, 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. Also, Complainant was highly qualified for the work. . 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. Also, DAFC Regent found Complainant to be very knowledgeable about budget and finance. ROI at 000095, 000180

VII.     CONCLUSION

 The Complainant has established a prima facie case of discrimination.   There are a number of material facts that remain in dispute and the testimony and cross examination of officials and witnesses is needed.  It would be inappropriate for the Commission to merely take the Agency’s self-serving proclamations as true.   The Complainant should be granted a hearing and given the opportunity to question witnesses, scrutinize the Agency’s unsupported proffers thereby completing the record.   A hearing is necessary in this case to ensure all remaining questions are adequately answered to complete the record.  

For the reasons outlined above, Complainant respectfully requests that the Agency’s motion be denied and a decision in favor of Complainant be issued.  In the Alternative, The Agency’s Motion should be denied and this case proceed to hearing to ensure all facts are clear and complete before the Administrative Judge renders a decision.

______________________                _____________________________________

Date                                                    Complainant’s Representative (fill in)

                                                            Address and Phone Number (fill in)

CERTIFICATE OF SERVICE

            I hereby certify that a copy of the foregoing was mailed/faxed this (fill in) day of (fill in) _________, 20__, to the agency’s representative, (fill in name) at (fill in address or fax number), and to the administrative judge (fill in name) at (fill in address or fax number).

                                                                        _________________________________

                                                                        (Fill in name of person who served copy)

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