Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 14, 2014

0120120101 (E.E.O.C. Feb. 14, 2014)

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

Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120120101

Agency No. P-2007-0046

DECISION
On July 5, 2011, Complainant filed an appeal from the Agency’s June 10, 2011, final decision
concerning her 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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-11
Correctional Treatment Specialist at the United States Penitentiary (USP) at the Federal
Correctional Institution in Victorville, California (FCI-Victorville).1

During the relevant time,
Complainant was supervised by the Unit Manager (S1). Her second level supervisor was the
Associate Warden (S2) and the Warden was her third level supervisor (S3).
Complainant filed an EEO complaint dated November 18, 2006, alleging that the Agency
discriminated against and subjected her to a hostile work environment on the bases of race
(African-American) and sex (female) when:

Beginning on April 28, 2006, Complainant experienced offensive remarks, unwarranted
criticism, false accusations of misconduct, unprofessional behavior, and changes in time
and attendance procedures specific to her only.

1 Complainant’s position is also referred to as Case Manager in the record.
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In an April 2, 2007 letter, the Agency accepted Complainant's complaint for processing and
forwarded her complaint of harassment based on sex and race for investigation. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the Report of
Investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ). On November 27, 2007, the Agency forwarded Complainant's complaint to its
Complaint Adjudication Office for issuance of a final decision.

On October 1, 2008, Complainant requested a hearing on the subject case (Agency Case No.
P-2007-0046) and another case she had filed (Agency Case No. P-2008-0162). On October
21, 2008, the AJ assigned to the case issued an “Order Of Dismissal Of Request For Hearing.”
Specifically, the AJ found that the time period within which Complainant could request a
hearing on Agency Case No. P-2007- 0046 had long since passed. However, the AJ stated that
the Agency was about ten months overdue in issuing its final decision in Agency Case No. P-
2007-0046 and informed Complainant she could continue to wait for the Agency’s final
decision, or she could appeal to the Commission's Office of Federal Operations ("OFO”) in
Washington, D.C. or file a complaint in the appropriate U.S. District Court. The AJ stated
that if Complainant chose to appeal to OFO, she could request sanctions against the Agency.

Additionally, the AJ noted the Agency dismissed complaint number P-2008-0162 for failure to
state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The AJ noted that according to the
Agency, Complainant appealed the dismissal to OFO. Thus, the AJ dismissed Complainant’s
request for a hearing.

Subsequently, on November 12, 2008, the Agency issued a final decision on Complainant’s
complaint. The Agency noted that Complainant claimed that the Unit Secretary (Secretary)
began to harass her shortly after she arrived to Unit 5A on April 23, 2006. Specifically, the
Agency noted that Complainant claimed the Secretary told other co-workers not to associate
with her because she was under investigation, monitored Complainant's paperwork and singled
out her mistakes, made unsolicited corrections to Complainant’s work, falsely accused
Complainant of assault, and falsely accused Complainant of calling her a “bitch.” The Agency
noted Complainant also claimed that she had heard that the Secretary made racially insensitive
remarks to other staff members and stated that the Secretary had problems with six minority
staff members (including Complainant) and all but one of the staff members were reassigned.
The Agency determined Complainant failed to show that she was subjected to discrimination as
alleged.

Additionally, in its final decision, the Agency recognized that a number of employees indicated
they had problems with the Secretary and said they had heard the Secretary make racially
insensitive comments. The Agency stated that even though the record does not establish that
the Secretary took any actions against Complainant because of race in this matter, the accounts
of the Secretary's insensitive comments were certainly troubling. The Agency noted the
widespread belief at FCI-Victorville that the Secretary had received special treatment and that
minority staff who have had conflicts with her have been reassigned because the Secretary's
father is a former Prison Warden. The Agency noted that the facility should consider
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providing EEO and diversity training for the Secretary and should investigate the allegations of
special treatment.

On December 11, 2008, Complainant appealed the Agency’s final decision. On appeal,
Complainant requested the Agency be sanctioned for its failure to timely issue a final decision
on her complaint.

In a November 18, 2010 decision, the Commission noted the Agency’s delay in issuing a final
decision was a matter of concern; however, it found sanctions were not warranted.
v. Department of Justice

, EEOC Appeal No. 0120101890 (November 18, 2010). The
Commission also declined to send the complaint back for a hearing.
However, the Commission found the record was not adequately developed and vacated the
Agency’s final decision. Specifically, the Commission noted that in its final decision, the
Agency inexplicably failed to address Complainant's allegation that she was subjected to
discrimination based on her sex. In addition, the Commission noted that with regard to
Complainant’s claim of discrimination and harassment based on race, the Agency did not
obtain an affidavit from the Secretary who Complainant alleged committed the harassment
described in her complaint. The Commission also found it unclear from the record whether
the Agency conducted its own investigation (apart from the investigation stemming from the
administrative EEO complaint) surrounding Complainant's harassment allegations. Moreover,
the Commission stated that on remand, the investigator should develop the record to clarify
Complainant's regular job duties and the duties of other GS-11 Case Managers at the Federal
Bureau of Prisons, United States Penitentiary, FCI-Victorville, in the Correctional Programs
Department to determine whether Complainant was treated differently from similarly situated
comparatives. Finally, the Commission found Complainant did not show any additional
witness testimony was necessary, apart from the Commission’s determination that the Agency
should have obtained a statement from the Secretary and Case Managers.

Following the Commission’s remand, the Agency conducted a supplemental investigation on
Complainant’s complaint. In a February 18, 2011 letter, the Agency informed Complainant
the supplemental investigation was completed and notified her that she had 30 days from her
receipt of the investigation to respond. The record reveals Complainant received the
supplemental investigation on February 23, 2011.

On June 10, 2011, the Agency issued a final decision on Complainant’s complaint. In its
decision, the Agency noted that Complainant claimed that a co-worker, GS-6 Unit Secretary,
who was also the Unit’s time keeper, subjected her to a hostile work environment based on her
race and sex from April 28, 2006, to August 22, 2006. The Agency concluded Complainant
failed to establish discrimination or harassment as alleged.

On appeal, Complainant states that she received the Agency’s February 18, 2011 letter on
February 26, 2011. She states despite the Agency’s contention to the contrary, she did send a
response to the Agency’s supplemental investigation on March 18, 2011, which she stated was
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signed for by the Agency on March 23, 2011. Along with her appeal, Complainant provides a
copy of her response to the supplemental investigation. Complainant also claims she timely
filed a Request for Hearing on her complaint on April 7, 2011. Complainant claims she has
shown that that the Secretary's actions were motivated by racial animus and that the Agency
was complicit in that it failed to protect her from harassment.

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

, at Chapter 9, § VI.A. (November 9, 1999) (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”).
At the outset, we address Complainant’s claim that she is entitled to a hearing on her
complaint. In our prior decision in EEOC Appeal No. 0120101890, the Commission upheld
the AJ’s October 21, 2008 decision to dismiss Complainant’s hearing request on the subject
complaint. Although the Commission sent the complaint back for supplemental investigation,
we did not provide Complainant with a renewed right to request a hearing. Internal records
reveal that Complainant filed a request for a hearing on the subject complaint with the EEOC’s
Los Angeles District Office in April 2011, which was docketed as EEOC Hearing No. 480-
2011-00477. However, we note Complainant’s hearing request was dismissed for lack of
jurisdiction. Thus, we find Complainant was not deprived of her right to have a hearing on
her complaint.

Moreover, we find the record in the present case was adequately developed. In reaching our
decision in this case, we have considered the record developed in Complainant’s prior appeal,
the supplemental investigation, and all information submitted by Complainant on appeal,
including her response to the supplemental investigation.

Reviewing Complainant’s work
In the present complaint, Complainant claimed the Secretary began harassing her on April 28,
2006, by throwing a transfer request on her desk and telling her it needed correction.
Complainant noted that she and the Secretary argued about the corrections and during the
argument Complainant closed her office door on the Secretary’s foot. Complainant stated that
after the door hit the Secretary’s foot, the Secretary accused her of assault and told
Complainant she no longer had respect for her. Complainant stated that “from that day on”
the Secretary began creating a hostile work environment for her.

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In her affidavit, the Secretary denied throwing the transfer papers on Complainant’s desk on
April 28, 2006. The Secretary stated that Complainant told her she did not like the Secretary
reviewing her paperwork. The Secretary stated that the Case Manager Coordinator and the
Unit Manager had directed everyone to pay special attention to proofreading because many of
their documents had been held up due to grammatical and spelling errors. The Secretary
explained that she and the other Secretary at the time were asked to spend more time
proofreading documents. The Secretary stated that all Case Managers and Counselors in Units
5 and 6 would route their paperwork through her and that she would review it and then send it
to the Unit Manager. The Secretary noted that Complainant wanted to bypass her and give her
work directly to the Unit Manager because she did not believe that a Secretary should review
her work.

In his December 6, 2008 affidavit for an Office of Internal Affairs (OIA) investigation, the
Unit Manager stated that the Secretary reviewed all release packets. He stated every secretary
he has ever supervised has been required to send out electronic mail messages to Case
Managers reviewing packets for completeness. He noted that Complainant complained about
the Secretary not being her supervisor; however, the Unit Manager stated he told Complainant
several times that reviewing Case Manager prepared paperwork was part of the Secretary’s
job. The Unit Manager stated that everything in his unit went through the Secretary before it
came to him.

Complainant alleged that the Secretary continued her harassment by sending Complainant
electronic mail messages and “cc’ing” (copying) the Unit Manager. Complainant stated that
on May 31, 2006, the Secretary sent her, a Senior Case Manager, an electronic mail message
concerning completing a Violent Crime Control and Law Enforcement Act (VCCLEA) report
and “cc’d” the Unit Manager. Complainant acknowledged that completing VCCLEA reports
was a part of her job and explained that these reports were sent to state and local law
enforcement agencies letting them know when inmates were being released and the crimes they
committed.

The record contains a May 31, 2006 electronic mail message from the Secretary to
Complainant with a “cc” to the Unit Manager. In the message, the Secretary noted the release
date of June 29, 2006, for an inmate. The Secretary stated that she “checked his file for a
VCCLEA with negative results. Please generate inmate [X’s] VCCLEA accordingly.”

Complainant sent a response electronic mail message to the Secretary on May 31, 2006, stating
she felt the Secretary was acting “as though you’re my supervisor conducting an audit.”
Complainant noted that when an inmate was released, the VCCLEA must be mailed at least
two weeks prior to the inmate's release. Complainant responded, “For your information, I
have completed the VCCLEA. Just because it’s not in the central file, does not mean it has not
been completed.” Complainant also commented on the duties the Secretary should be
performing.

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We find the Secretary had legitimate, nondiscriminatory reasons for contacting Complainant
about the VCCLEA reports since the Unit Manager ordered her to do this. The record
contains a May 31, 2006 electronic mail message from the Unit Manager to Complainant
stating that prior to Complainant’s arrival, he had instructed the Secretary “to contact the Case
Managers (with a cc: to me) and remind them that a VCCLEA is due so she can route the
release packet.” The Unit Manger stated he wanted the Secretary to remind Case Managers to
complete the VCCLEA reports “well in advance of an inmate’s release” so that the Secretary,
who was “responsible for completing the release paperwork,” could prepare the paperwork in
a timely manner. In his message, the Unit Manager noted that he and not Complainant was
responsible for delineating staff’s “duties and responsibilities.”

Mail
Complainant also alleged that the Secretary harassed her by demanding she issue mail to an
inmate who was on Complainant’s caseload. Complainant stated that during the relevant time,
inmate mail was usually the responsibility of the Counselors or the Secretary.

The Secretary stated that an inmate assigned to Complainant received “legal mail” that “was
supposed to be delivered within 24 hours upon receipt to the institution.” The Secretary stated
she asked Complainant to deliver the mail to the inmate because Complainant was visiting the
inmate’s unit and Complainant “said she would take it.” The Secretary stated that
Complainant took the mail. The Secretary stated that a couple days later she found the mail on
her desk and was annoyed that Complainant had not delivered the mail. The Secretary stated
she informed the Unit Manager about this and he told her to put the mail in Complainant’s mail
box for delivery. The Secretary stated when Complainant discovered the letter she became
upset and said the Secretary should be delivering the letter because she delivered other mail.
The Secretary stated she explained to Complainant that the Unit Manager told her to put the
letter in Complainant’s mail box and that Complainant then threw the letter “at my feet” and
“called me a bitch.” The Secretary stated she told the Unit Manager about the incident and he
delivered the mail.

Case Manager B stated that he became a Case Manager in October 2005, and was working at
the USP during the period of April 28 - August 22, 2006. He worked with the Secretary and
under the Unit Manager. Case Manager B stated that he has hand delivered letters to inmates
for their signature and stated this was a “team thing” during that time. He stated he has had to
route documents on rare occasions; however, he noted that the Unit Secretary usually did this.

Case Manager C stated that she was a Case Manger at FCC Victorville from July 2004 until
June 2007. She stated she worked with Complainant and the Secretary at the penitentiary
during this time. Case Manager C stated that she has delivered mail to inmates in the absence
of a counselor to “assist each other.”

Case Manager D worked as a Case Manager at FCC Victorville since 2004. He stated that he
worked with Complainant at the penitentiary. He stated that he has delivered legal mail to
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inmates requiring a signature. Case Manager D said mail delivery was typically the Unit
Secretary’s job, but there were times when he was going to an area where mail needed to be
given out and “sometimes you would just take care of that.”

Complainant’s allegation also contained the claim that on August 22, 2006, in the presence of a
staff member (Case Manager A), the Secretary falsely alleged that Complainant called her a
“bitch.” Case Manager A said she was present on August 22, 2006, regarding the incident
between Complainant and the Secretary where the Secretary accused Complainant of calling
her a “bitch.” Case Manager A stated the Secretary gave her some mail for Complainant to
deliver and Complainant told Case Manager A to give the mail back to the Secretary for
delivery. Case Manager A stated the Secretary appeared upset by these events because
Complainant wanted the Secretary to route the mail. Case Manager A stated when
Complainant refused to take the mail, the Secretary and Complainant began to argue and the
Secretary told Complainant, “I’d appreciate you not calling me a bitch.” Case Manager A
stated she did not hear Complainant use “profanity” or “derogatory terminology” to the
Secretary. Specifically, she stated she did not hear Complainant call the Secretary a “bitch.”

Upon review, we find Complainant failed to show that the Secretary’s actions in asking her to
occasionally deliver mail were based on discriminatory animus. Moreover, even assuming that
the Secretary falsely accused Complainant of calling her a “bitch,” Complainant failed to show
that this action was based on Complainant’s race or sex.

Time and Attendance
Complainant stated that the Secretary was not only the timekeeper for the Unit Manager’s
Unit, she was also the timekeeper for all the unit employees in the institution. Complainant
alleged that one time and attendance issue that concerned her was not receiving night
differential pay in a timely manner. Specifically, Complainant claimed she had not received
three hours of night differential pay for June 27, 2006. She claimed that the Unit Manager
should have ordered the Secretary to correct the pay discrepancy immediately instead of
making her wait two to three pay periods to receive her pay.

The record reveals that the Secretary submitted the paperwork to correct this error on July 24,
2006. Complainant contacted the Secretary again on August 3, 2006, stating that she had not
yet received the night differential worked on June 27, 2006. The record reveals that the
Secretary then resubmitted the correction on August 8, 2006, based on the fact that
Complainant still at that time had not been paid for the night differential she worked on June
27, 2006.

In addition, Complainant claimed that the Secretary singled her out by requiring her to
complete a time and attendance sheet. Complainant claimed that no other Unit employee was
required to do this.

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The Secretary stated that she typically sent an electronic mail message to the staff asking for
their hours for the pay period, and she would then prepare the time and attendance based on
their responses. The Secretary stated that Complainant wanted to make sure her overtime
forms were properly keyed and sometimes Complainant did not have the paperwork to support
her overtime requests. The Secretary stated that every employee was responsible for getting
their overtime slips approved, signed, and submitted. The Secretary stated that only after she
had the signed slip would she then enter the overtime into the time and attendance system. The
Secretary stated she only had problems with Complainant’s overtime requests because
Complainant wanted to key in overtime without providing a signed leave slip. The Secretary
stated she prepared Complainant’s time and attendance the same as that of the other employees.

The record reveals that during correspondence surrounding the handling of Complainant’s June
27, 2006 night differential pay, on August 9, 2006, Complainant requested to sign her time
and attendance prior to the Secretary keying it. In an August 9, 2006 response, the Secretary
sent Complainant a time and attendance worksheet that she could fill out each pay period
documenting her schedule. The Secretary stated that Complainant could provide the worksheet
to her in a timely manner, and she would key Complainant’s time and attendance as recorded,
assuming all documentation was attached (such as completed overtime slips). The Secretary
stated that the Unit Manager would then review and sign the worksheet. The Secretary stated
that following receipt of the Unit Manager’s signature, Complainant could then review and
sign the worksheet. The Secretary stated that any discrepancies could be brought to her
attention or the Unit Manager’s attention.

In an August 10, 2006 response, Complainant rejected the Secretary’s proposal and stated “[i]t
has always been the Secretary’s job to do the T&A, so continue to do it.” The Secretary
responded the same day stating she would continue to complete T&A as she had in the past.

In his affidavit as part of the OIA investigation, the Unit Manager acknowledged that
Complainant complained to him about her time and attendance. He stated he looked at
Complainant’s time and attendance and saw nothing wrong with it. He stated that Complainant
wanted overtime added to the time and attendance before approving officials had signed it.
The Unit Manager stated he explained to Complainant that overtime would not be keyed until
the approving authority had signed the overtime document. Also, the Unit Manger stated that
Complainant complained that she had to fill out time and attendance forms. However, the Unit
Manager stated that all unit staff had to fill out the form. The Unit Manager stated he sent out
an electronic mail message to his staff requiring them to fill out the form and give it to the
Time and Attendance Clerk.

The record reveals that on August 10, 2006, the Unit Manager sent a message to all Unit Staff
regarding time and attendance. He stated that “[d]ue to the recent activation of Unit 6A and
the impending activation of Unit 6B, coupled with the impending departure of Unit Secretary
[2], the workload for [the Unit Secretary] is increasing.” He stated that “in an effort to assist
her with her additional duties of being both Unit Management’s T&A Keeper and T&A Keyer,
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all Unit Management staff will complete the attached T&A Worksheet and forward it to her no
later than the last Friday of each pay period.”

Case Manager A stated that while working with the Unit Secretary, she had some kind of
worksheet they would fill out and that would help the Secretary fill out an official timesheet.
Case Manager B stated that he did not recall providing the Unit Secretary with a T&A
worksheet; however, he stated that she sent him an electronic mail message asking for his
hours before each pay period. Case Manager D (male, White) stated that the Unit Secretary
would send him an electronic mail message and she would let her know how many hours he
worked. He stated that once there was a mix-up and he did not get paid for two pay periods in
a row. Case Manager D did not remember receiving an electronic mail message/memorandum
from the Unit Manager stating that the unit team members would have to keep track of their
own time and attendance on a worksheet. He stated that if they got such a message, no one
ever did that since it was commonly understood that it was the Secretary’s responsibility.

In addition, Complainant claimed that she asked the Secretary to review her time and
attendance file and the Secretary told her that she had to review the file in the Secretary’s
presence.

The record contains a July 19, 2006 electronic mail message from the Secretary to
Complainant responding to Complainant’s request to review her time and attendance file. The
Secretary informed Complainant of her availability to meet with Complainant so Complainant
could review her file for discrepancies. The Secretary stated that Complainant “can only
review [her] file in the presence of the T & A clerk, so please wait for my arrival.”

Complainant sent a reply electronic mail message on July 19, 2006, to the Secretary.
Complainant claimed that Agency policy stated that an employee can view her time and
attendance file anytime they wished and that the employee does not need the presence of a time
and attendance clerk or secretary to review the file.

The record contains a July 19, 2006 electronic mail message from the Unit Manager to
Complainant and the Secretary regarding the review of time and attendance files. The Unit
Manager stated that “erroneous guidance was given to [the Secretary] regarding staff reviewing
their T & A file. Staff are allowed to review their T & A file not in the presence of the T & A
clerk. I apologize for any inconvenience this matter has caused.”

In her affidavit, the Secretary recalled Complainant asking to review her time and attendance
file. The Secretary stated she made an appointment with Complainant to do so. The Secretary
stated that instead of reviewing the file together, Complainant “took off with it.” The
Secretary stated she asked Complainant not to do that, but the Secretary stated she was not
going to use force. The Secretary stated that the time and attendance file was a “controlled
document” and was supposed to be kept within the Secretary’s personal area and secured in a
fireproof cabinet. The Secretary stated she spoke with HRM regarding Complainant walking
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off with the file and that they did not like it, but they told her technically there was nothing in
the policy stating that an employee should not handle their time and attendance file.

Complainant under investigation
Complainant also claimed that the Secretary told Case Manager A that Complainant was under
investigation and that she was “hanging out with the wrong type of people” (meaning
Complainant).

The Secretary stated she did not recall telling Case Manager A that Complainant was under
investigation and that Case Manager A was “hanging out with the wrong type of people.” She
stated she would not have said anything like that to Case Manager A because Case Manager A
was on temporary assignment and the Secretary had just briefly met her. The Secretary stated
she did not interact with Case Manager A very much and did not consider her a friend or
confidant.

Case Manager A stated that she was in the Unit for four months as a result of a temporary
assignment. Case Manager A stated that the Secretary made her uncomfortable because she
had a temper and because she slammed doors and threw things. Case Manager A said that the
Secretary told her she should watch out for Complainant “because [Complainant] was under
investigation and that [Case Manager A] was now being watched.”

Log
Complainant also claimed that the Secretary kept a ledger in which the Secretary noted when
Complainant’s paperwork came back with “corrections.”

In her affidavit, the Secretary stated she kept a log “document[ing] all of the paperwork that
leaves the unit and when it did.” The Secretary stated that the purpose of the log was to track
unit documents. The Secretary stated that she tracked everyone’s paperwork, not just
Complainant’s paperwork.

Complainant provided four pages of what she described as a “routing log” kept by the
Secretary for all Case Managers for recording the routing of documents sent forward for
management signature. The log documented the “originator” of the document, the subject of
the document, the inmate’s name and number, the date, and a signature by the Secretary. The
“routing log” listed documents from several Case Managers, including Complainant and
secretaries (including the Unit Secretary). The log contained a notation of “corr” on some of
Complainant’s listed entries.

Upon review, we find Complainant failed to show that the Secretary’s actions in reviewing her
work, contacting her about the VCCLEA reports, her handling of Complainant’s time and
attendance, or her keeping a log of documents forwarded for review were based on
Complainant’s race or sex. Assuming the Secretary falsely told Case Manager A that
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Complainant was under investigation, we find Complainant failed to show such a false
accusation was based on discriminatory animus.

Racial remarks
Complainant also alleged that the Secretary made racial remarks that created a hostile work
environment. Specifically, Complainant stated that the Unit Secretary told a Supervisor Inmate
Systems (SIS) Technician that the Secretary was having trouble “adjusting to the blacks and
browns.” The Unit Secretary denied making a comment that she was having trouble working
with and “adjusting to blacks and browns.” Although the SIS Technician was not interviewed
by the EEO investigator, the Agency’s OIA investigated Complainant’s charges against the
Secretary and interviewed the SIS Technician. The SIS Technician told the OIA Agency that
the Secretary told her that the “move to Victorville had been an adjustment for her children”
because the “children had not been exposed to minorities and were having difficulty adjusting
to all the ‘blacks and browns.’” The SIS Technician stated that the Secretary did not state that
she and her family were “[t]rying to get used to the blacks and browns.” With regard to the
alleged comment made by the Secretary that she had trouble working with or “adjusting to
blacks and browns,” we note that Complainant did not claim she heard this comment. Rather,
Complainant stated that it was relayed to her by the SIS Technician.

Complainant also claimed that during an Aryan Brotherhood trial, the Secretary told SIS
Specialist (Person E) that the Aryan Brotherhood “shouldn’t be prosecuted. They didn’t do
anything wrong.” Complainant also stated that the Secretary had conversations about the Ku
Klux Klan (KKK). Complainant also maintained that the Secretary had problems with six
minority staff members (including Complainant) and managers, and that all except one were
reassigned.

In her affidavit, the Secretary stated that a criminal case against the Aryan Brotherhood was
being discussed by various staff members. The Secretary noted that the Aryan Brotherhood
trial was a huge case at the time and they even held some of the inmates who were called to
testify at USP Victorville. In addition, the Secretary stated that it was a big topic of discussion
because it was rumored that the Aryan Brotherhood had put out a contract that if the members
were convicted, that there was going to be a “hit on sight for law enforcement officers.” The
Secretary stated that she felt that if the government was “going to prosecute gang members
who were organizing murders from their prison cells, that perhaps the death penalty could be
considered rather than additional life sentences.” The Secretary stated it was not making sense
to her why they would spend so much money to add another life sentence to a lifer. The
Secretary did not remember discussing the KKK with Case Manager B and Case Manager F.
In her affidavit to the OIA Investigator, the Secretary denied stating that the Aryan
Brotherhood had done nothing wrong and that the government should leave them alone.

Case Manager B stated that he did not recall the Secretary saying anything positive about the
Aryan Brotherhood. Specifically, he stated he did not remember a conversation with the
Secretary regarding whether they were guilty or not or whether they should be punished or
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not. Case Manager B stated he did not remember any discussions about the KKK. However,
he told the OIA investigators that he had been telling the Secretary and another employee how
he had gotten the nickname “Grand Wizard.” He stated that he was given the nickname not
because of any affiliation with a White supremacy group, but because he came from a town not
far from Vidor, Texas which he said was reportedly the headquarters for the KKK in Texas.

Case Manager F (White, female) stated that before Complainant came to the Unit, she heard a
White male and the Secretary talk about the KKK and make reference to White Supremacy.
She stated she thought he was joking. Case Manager F stated she never heard the Secretary
make any direct racial statements. She described the Secretary as “very confrontational” and
said she had several run-ins with her and tried to avoid her.

Also, Person E stated that during the trial of Aryan Brotherhood members, the Secretary stated
it was a waste of government money to be putting these guys on trial; it’s no big deal. Person
E stated that she asked what the Secretary meant since these guys killed someone.

With regard to the comments concerning the Aryan Brotherhood trial, the record reveals that
the trial was discussed throughout the Unit. Complainant stated she did not hear the comments
directly. Rather, Complainant stated that Person E told her that the Secretary commented that
it was a waste of government money to put the Aryan Brotherhood on trial since it was not a
big deal. In her affidavit, Person E confirmed this statement. The Secretary acknowledged
that she did state that it did not make sense to her that the government would spend so much
money to add another life sentence to a “lifer” and that they should have considered the death
penalty. In his affidavit, Case Manager B stated that he did not recall the Secretary saying
anything positive about the Aryan Brotherhood. With regard to the alleged comments about
the KKK, we find Complainant failed to show that the Secretary made comments concerning
the KKK during the relevant timeframe. Although Case Manager F stated that she heard a
White male and the Secretary talk about the KKK and make reference to White Supremacy, we
note that this happened before Complainant came to the Unit. Upon review, we find
Complainant failed to show that the instant circumstances of which the comments made by the
Secretary (never directly to Complainant or heard by Complainant) concerning the Aryan
Brotherhood trial and adjustment by her children to “blacks and browns,” were sufficiently
severe or pervasive to constitute racial harassment.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.
0120120101

13

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

0120120101

14
RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
February 14, 2014