0120092405
09-02-2010
Jimmy B. Patton, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Jimmy B. Patton,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120092405
Agency No. P-2007-0389
DECISION
On May 8, 2009, Complainant filed an appeal from the Agency's April 8, 2009 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
Whether there is substantial evidence in the record to support the EEOC Administrative Judge's (AJ) determination that Complainant did not prove that he was subjected to discrimination when his request for a transfer was denied, and when he was terminated during his probationary period.
BACKGROUND
At the time of events giving rise to this complaint, Complainant (White) was a former probationary Cook Foreman, WS-8, at the Federal Correctional Institution located at Big Spring, Texas (FCI - Big Spring). The Warden (Black) at the facility was an acquaintance of Complainant and his family.1 The Food Services Administrator (S1) (Hispanic) was Complainant's direct supervisor. Complainant claimed that S1 harbored racial animus toward employees who were not Hispanic, and that S1 conspired with other employees to ensure that the Warden would terminate his employment based on fabricated performance and conduct charges. Complainant contends that S1 used the Warden as a "cat's paw" to bring about Complainant's termination. That is, Complainant does not believe that the Warden harbored any discriminatory animus against him, but that S1 disliked Complainant because he is White, and intentionally gave the Warden a false or exaggerated impression of Complainant's performance and conduct problems, knowing that the Warden would decide to terminate Complainant.
The record shows that during Complainant's probationary period, two investigations into his alleged misconduct were initiated. The first investigation was prompted by Complainant's alleged "inattention to duty," when, according to the Cook Foreman (Hispanic), Complainant was asleep at work. Complainant points out, however, that the Cook Foreman is the best friend of S1, and that the two of them served in the military together. Complainant also maintained that he was not sleeping as alleged, but was ill and actually passed out. Complainant stated that he submitted documents to prove that this was a legitimate medical emergency, and emphasized that the charges against him were ultimately not sustained.
The second investigation was prompted by charges which Complainant contends were concocted by S1 and the Cook Foreman concerning Complainant having allegedly left a six-inch knife unsecured. It is undisputed that after Complainant's termination, this charge was also not sustained.
The record reveals that in early April 2007, Complainant requested a transfer, and the Warden denied it. Shortly thereafter, on April 10, 2007, the Warden terminated Complainant's employment. The termination letter lists the following five (5) specifications (all of which Complainant claims are false or distorted representations of the facts):
(1) failure to maintain the security of the Food Service Department when he did not secure the bread cooler;
(2) failure to follow policy by giving an inmate food and then walking away from the inmate;
(3) failure to secure a six-inch knife to the vegetable preparation room table as required by policy;
(4) failure to properly conduct an AM detail census check and account for all inmates, and as a result, three inmates were absent without authorization; and
(5) releasing an inmate from Food Service without searching him, and when the inmate was eventually searched, the inmate was found to have food hidden underneath his shirt.
See Attachment 27.
Believing he was the victim of a discriminatory termination orchestrated by S1, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (White) and national origin (non-Hispanic) when:
(1) on April 8, 2007, his request to transfer out of Food Services to Correctional Services was not approved; and
(2) on April 10, 2007, he was terminated during his probationary period.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing and a hearing was conducted on January 8, 2009. On February 23, 2009, the AJ issued a decision finding no discrimination.
AJ Decision
The AJ first concluded that the record failed to establish a prima facie case of discrimination. The AJ noted that Complainant identified a former Hispanic Food Service employee (comparator) who Complainant believes (based on what he learned from the Union) was treated more favorably during his probationary period despite having similarly unsatisfactory job performance. Among other things, this employee was allowed to transfer from Food Service to Correctional Services. The AJ found however, that the comparator was not similarly situated to Complainant as he had worked under a different Warden several years prior to Complainant's arrival at FCI- Big Spring.
The AJ found that, regardless of whether the record established a prima facie case of discrimination, management articulated legitimate, non-discriminatory reasons for its actions. Specifically, as to issue (1), the transfer request was denied because Complainant's termination paperwork had already begun to be processed when the request to transfer was made. As to issue (2), Complainant was terminated during his probationary period because of conduct and performance issues, with the determinative factor being that he was under investigation for having allegedly left a knife unsecured.
The AJ noted that Complainant did not believe the Warden harbored discriminatory animus, but that he claimed that S1 was the individual who wished to discriminate against him and used the Warden as a "cat's paw" to get Complainant fired. The AJ noted however, that she found the Warden to be credible when he testified that S1 had no involvement in the adverse actions. The AJ also found the Warden credible when he stated that he noticed problems in Complainant's performance early in Complainant's employment, and continued to observe these problems throughout Complainant's time at the facility. The AJ also found that S1 was credible when he denied participating in the decision to deny the transfer request or to terminate Complainant. S1 also denied that he was present when Complainant allegedly left the knife unsecured.2 The AJ found that there is no evidence that the decision-maker, the Warden, was motivated by discriminatory animus when he made the decisions at issue. In its final order, the Agency fully implemented the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, reiterated his version of the facts, and suggested that the Complainant's contention on appeal that the AJ's credibility determinations should be discounted. He also contends that the record established a prima facie case of discrimination because his Hispanic comparator was similarly-situated.3 He maintains that he did not have any conduct issues and that the conduct allegations made against him were not sustained in the subsequent investigations. Therefore, he contends that he was in the same position as his comparator, who had only performance deficiencies, but who was not written up by S1 like Complainant often was, and who was able to successfully complete his probationary year. He contends that S1 looks the other way when Hispanic employees have performance problems.
Complainant also reiterates his contention that S1 used the Warden as a "cat's paw" in order to get him fired because he was not Hispanic. He asserts that S1 had other EEO complaints brought against him4 and that there was testimony to the effect that S1 treated Hispanics more favorably than others. Complainant also emphasizes that there was no proof or investigation regarding any of the specifications that supported his termination. Therefore, he maintains that the AJ erred in finding credible the Warden's testimony, that he honestly believed that Complainant was guilty of the specifications.
Complainant also states that S1 gave inconsistent testimony about his whereabouts on the date of the alleged unsecured knife incident. Complainant maintains that this should rebut the AJ's determination that S1 was credible. He also notes that although S1 testified that leaving a knife unsecured was a dangerous security breach, he admitted that he did not talk to Complainant about it, and, in addition, the Cook Foreman waited 16 days before he wrote a memo concerning the incident. Complainant maintains that he was not made aware that he had allegedly left a knife unsecured until the date of his termination. He states that this was because it did not happen, and asserts that he did not even have the keys he would have needed to leave a knife unsecured.
In response, the Agency emphasizes that the individual responsible for not transferring Complainant and removing him was the Warden, and not S1. The Agency additionally states that any decision involving Complainant's identified comparator was made by a different Warden. In addition, the comparator was transferred because of performance issues only, and did not experience the same type of conduct issues which Complainant experienced. For example, the record is void of any incidents where the comparator was subjected to an Office of Internal Affairs investigation or had the type of security concerns that Complainant experienced.
The Agency further asserts that the AJ correctly found that it articulated legitimate, nondiscriminatory reasons for its actions. Specifically, two days prior to Complainant's removal (April 8, 2007) he requested a transfer from the Warden. The Warden gave credible testimony that the decision to terminate Complainant was made prior to this request and that the paperwork had already been initiated. Additionally, the Agency asserts that a transfer to Correctional Services would not have been in the Agency's best interests considering the previous security infractions committed by Complainant, i.e., the knife incident.
As to the termination, the Agency asserts that Complainant experienced numerous performance and conduct issues. Included in these were at least two incidents which were referred for Office of Internal Affairs investigation. The Agency notes that although Complainant asserts that none of the charges were sustained, it is important to note that as of February 27, 2007 the "inattention to duty" charge was sustained. The Agency recognizes that subsequently, this charge was reversed after Complainant was removed from service on or about April 10, 2007. Therefore, the Agency's position is that while it is true that no charges were ultimately sustained, at the time of the removal there was a sustained charge. The Agency maintains that the incident which involved the six-inch knife not being secured was the "final straw," according to the Warden, which resulted in Complainant's removal. The Agency emphasizes that a security issue like this needed to be taken seriously in a prison setting for obvious reasons. Thus, the Agency asserts that the AJ's decision was supported by substantial evidence in the record and should be affirmed.
ANALYSIS AND FINDINGS
At the outset, we note Complainant's contention on appeal that the AJ's credibility determinations should be discounted. The Commission's long held policy is that an Administrative Judge's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999); Grant v. Dep't of the Treasury, EEOC Appeal No. 01985972 (August 2, 2001).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, he must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Issue (1)
We find that Complainant has not established a prima facie case of discrimination based on race and/or national origin [C1]concerning his denied request to transfer. Complainant has not identified any comparator, outside his protected classes, whose request to transfer was granted under similar circumstances. A different Warden granted the transfer request of Complainant's identified comparator. We also find that there is no other evidence in the record that would support an inference of discrimination. In this regard, we note that the AJ found that the Warden testified credibly when he stated that the decision to terminate Complainant had already been made and the paperwork initiated when Complainant's transfer request was made. Accordingly, we find no prima facie case of discrimination, and therefore our analysis ends here.
Issue 2
We also find that Complainant has not established a prima facie case of race and/or national origin discrimination with regard to this issue. [C2]Although Complainant is a member of two protected groups by virtue of his race and national origin, and he was subjected to an adverse action when he was terminated during his probationary period, the record does not, however, contain evidence that would support an inference of discrimination. First, there is substantial evidence in the record to support the AJ's conclusion that Complainant's comparator was not similarly-situated to Complainant. As noted above, the comparator also worked under S1 like Complainant, but under a different Warden. Moreover, the record does not clearly establish that the comparator's performance deficiencies were as severe, or of the same nature, as Complainant's performance deficiencies. Even though the conduct charges against Complainant were not ultimately sustained, at the time that the Warden decided to terminate Complainant, he was being investigated for a serious conduct violation, namely, leaving a knife unsecured. The record evidence does not indicate that the situations involving Complainant and the comparator were so similar that the differences in employees' treatment by management would give rise to an inference of discrimination. Accordingly, we find no prima facie case of discrimination with respect to issue (2), and therefore our analysis ends here.
We also note Complainant's argument raised on appeal that this is a classic "cat's paw" case, in which liability can be imputed to the employer because S1 harbored discriminatory animus toward him, and that this improperly influenced the decision of the Warden, the decision-maker. The Commission has previously found discrimination under a cat's paw theory. See Deirdra Brown v. Dep't of Justice, Appeal No. 0120045121 (December 20, 2006) (holding that responsible management official did not need to have racial animus against Complainant to support finding of discrimination when official relied heavily upon the accounts of employees who harbored racial animus against Complainant to terminate Complainant); Echard v. Dep't of Justice, Appeal No. 07A20137 (November 5, 2003)(Commission held that responsible management official did not need to have actual knowledge of Complainant's prior EEO activity when he was acting as a conduit of another employee's prejudice against Complainant).
Complainant insists that S1 used the Warden to achieve his goal of ensuring Complainant would be terminated, however, the record does not lead to such a conclusion. In fact, given that the Warden had a personal relationship with Complainant's family, and given that the Warden admits being aware that S1 had been accused of treating Hispanics more favorably (HT at 148), we find it unlikely that the Warden would have rely solely upon S1's complaints about Complainant when deciding whether to terminate Complainant. The Warden further testified that he had personally observed deficiencies in Complainant's performance early on in his employment, and that the allegation involving the knife was the final straw. The Warden also testified that he made the termination decision on his own. See HT at 137. In addition, the Warden testified that terminating Complainant was a hard decision that he struggled with and even discussed with his wife. See HT at 142-3. Complainant has not presented evidence that this was not the case. Accordingly, although we have considered Complainant's "cat's paw" argument, as indicated above, we simply discern no circumstances that would support an inference of discrimination in this case.
CONCLUSION
Based on the totality of the evidence, including the AJ's credibility determinations, we find that there is substantial evidence in this record to support the AJ's determination that Complainant has not established that the Agency's actions were motivated by discriminatory animus. We AFFIRM the Agency's final order.
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.
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
___09/02/10_______________
Date
1 The Warden suggests that the families were fairly close, while Complainant understates the relationship between the families. HT at 62, 125-6, 144.
2 Complainant contends that S1 provided inconsistent testimony concerning whether he was present at the facility on the date in question, which Complainant believes is evidence that the plot was concocted by S1, in collaboration with others who were present that day, to ensure that the Warden would terminate Complainant.
3 Complainant testified that he did not personally know the comparator, but that he learned about him from the Union. Hearing Transcript (HT), at 82.
4 S1 acknowledged during his testimony, that this was true. HT, at 75.
[C1]I would have preferred more definitive holding - there was or was not a PFC because.... As noted previously, I generally do not favor an Aikens type of analysis.
[C2]While we find that there is no PFC, we go forward with the analysis as if there is a PFC - which is confusing. If we feel we need to analyze whether there was a pretext, perhaps that should be included not as the analysis of pretext but why there is no inference of discrimination? I thought that if there were no PFC, there was no need to assess whether the employer articluated a LNDR or whether there was pretext. Isn't this how we would typically analyze these?
??
??
??
??
2
0120090429
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092405