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

Equal Employment Opportunity Commission

Feb 20, 2015

0120130639 (E.E.O.C. Feb. 20, 2015)

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. 0120130639

Agency No. P-2011-0948

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated October 22,
2012, finding no discrimination concerning his 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, we AFFIRM the Agency’s final decision finding of
no discrimination.

BACKGROUND
In his complaint, dated September 21, 2011, Complainant, a GS-11, Case Manager, at the
Agency’s Federal Correctional Institution, Manchester, Kentucky, alleged discrimination based
on sex (male) when on September 20, 2011, his Warden issued him a letter of reprimand.
After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing. The Agency thus issued its final Agency decision concluding that
it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to
rebut.

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
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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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged reprimand. The record indicates that on July 15, 2011, Complainant’s
Unit Manager issued him a notice of proposal to suspend him for five days for his
unprofessional conduct and failure to follow policy. Specifically, the Unit Manager indicated
in the notice that in April 2010, Complainant made a comment to a female unit secretary to the
effect of either “licking or touching his balls;” in May 2010, he walked past the window of the
secretary and blew kisses at her; and on January 28, 2011, he, admitted by him, allowed an
inmate to make an unmonitored phone call from his office in violation of the Agency policy.
Thereafter, on September 20, 2011, Complainant’s Warden decided to issue Complainant the
letter of reprimand at issue instead of the suspension as proposed by the Unit Manager because
she believed that the reprimand would correct his behavior. Therein, the Warden indicated
that the incident concerning the charge of Complainant’s unprofessional conduct was witnessed
by other staff and Complainant, by his own admission, allowed the phone call by the inmate as
charged.1

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, we find that
Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. Based on the foregoing, we find that Complainant
failed to show that the Agency’s action was motivated by discrimination as he alleged.
Complainant argues on appeal that he also alleged that the reprimand at issue was motivated by
retaliation. The Commission finds that Complainant has not shown that the Agency’s
legitimate, nondiscriminatory reasons were a pretext for discrimination and we also therefore
find no persuasive evidence that the reprimand was motivated by retaliation.

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

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 r ecord indicates t hat t he A gency’s Office of Internal Affairs investigated the incidents
described in the reprimand and sustained the charges therein.

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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.

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
0120130639

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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 20, 2015