[Redacted], Marcel M., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 30, 2021

Appeal No. 2020000735 (E.E.O.C. Mar. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcel M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020000735 Hearing No. 541-2014-00153X Agency No. BOP-2011-0246 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the September 25, 2019 decision of an EEOC Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint claiming 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.2 BACKGROUND During the period at issue, Complainant worked as Material Handler Supervisor at the Agency’s Bureau of Prisons, Federal Correctional Institution in Englewood, Colorado. On April 10, 2001, Complainant filed a formal complaint claiming that he was discriminated against based on sex (male) when he was denied leave under the Family and Medical Leave Act 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision became the final action of the Agency. 2020000735 2 (FMLA) and reassigned to a new position. Following a hearing, an EEOC Administrative Judge (AJ) determined that Complainant had been subjected to unlawful discrimination. The Agency appealed the AJ’s award of relief, which included among other remedies the payment of back pay and benefits, to the Commission. In Complainant v. Dep’t of Justice, EEOC Appeal No. 0720080041 (Oct. 8, 2008), the Commission affirmed the AJ’s award and determined that Complainant had claimed that he was constructively discharged, a matter that was not addressed by the AJ. Consequently, the Commission remanded the constructive discharge claim to the Hearings Unit and the issue of Complainant’s award of back pay was held in abeyance. Subsequently, a hearing was held on the constructive discharge claim by another AJ. The AJ determined that Complainant had been subjected to ongoing harassment when the Agency constructively discharged him by reassigning him to a Correctional Officer position. The AJ awarded Complainant back pay and benefits, minus mitigation. The Agency appealed the AJ’s award, and the Commission affirmed both finding of discrimination and the back pay award. See Complainant v. Dep’t of Justice, EEOC Appeal No. 0720110002 (Feb. 23, 2011). In April 2011, Complainant filed an EEO complaint (Agency Complaint No. BOP-2011-0246) claiming that the Agency unlawfully retaliated against him for his prior EEO activity by placing him on Leave Without Pay (LWOP) status from March 11, 2009 until October 23, 2010, when he returned to duty following the AJ’s September 2010 discrimination finding. The Agency processed this complaint and it was assigned to an AJ. This is the complaint at issue in the instant appeal. While the Agency was processing the complaint, Complainant filed a Petition for Enforcement with the Commission on the same matter (LWOP status from March 11, 2009 until October 23, 2010), claiming that the Agency failed to comply with the Commission’s order in Appeal No. 0720110002. Before the Commission issued a determination on Complainant’s Petition for Enforcement, the AJ granted the Agency’s Motion for Dismissal regarding, “Complainant’s allegations that the Agency has failed to comply with the AJ’s decision in EEOC Hearing No. 541-2004-00246X.” In an April 17, 2013 Order, the AJ noted that Complainant should have raised this claim with the Commission. The AJ further noted that “to the extent that Complainant appears to allege a hostile work environment based on reprisal, I find no separate basis . . . on which to proceed as the allegations are inextricably intertwined and subsumed in the crux of Complainant’s dissatisfaction with the Agency’s alleged failure to comply with the AJ’s decision in [Appeal No. 0720110002].” See Decision in EEOC Hearing No. 540-2012-00046X. Complainant appealed the AJ’s dismissal of his independent claim of retaliation regarding being placed in LWOP status from March 11, 2019 until October 23, 2010. 2020000735 3 In Complainant v. Dep’t of Justice, EEOC Appeal No. 0120140029 (Feb. 25, 2014), the Commission reversed the AJ’s decision to dismiss the claim of retaliation. The Commission explained that Complainant’s placement on LWOP was a new issue rather than a portion of the relief ordered by the Commission in the earlier discrimination finding, and consequently, the Commission remanded this matter to the Agency further processing. On remand, the assigned AJ issued a decision by summary judgment finding the evidence failed to support Complainant’s claim of unlawful retaliation. The AJ first noted that Complainant had previously raised, in a prior complaint (Agency No. BOP-2012-0010), the issue of whether he was discriminated against in reprisal for prior protected EEO activity when he was notified that he would be placed in involuntary LWOP status for the period of March 11, 2009 through October 23, 2011. The AJ explained that she previously dismissed the claim identified in complaint BOP-2012-0010 (EEOC Hearing No. 541-2013-00019X). The AJ reiterated her reasoning in her prior decision dismissing this claim, and stated the following: Complainant argues that the Agency putting him on Leave Without Pay denied him the “make whole” relief I ordered. However, Complainant is wrong. I specifically denied Complainant back pay after March 11, 2009. Not being entitled to back pay essentially means that Complainant is in a non-work status at that time. Complainant argues that he was stripped of creditable time from the time he was on LWOP. This is true but is a direct consequence of the fact that I cut off back pay on March 11, 2009. So, due to his decision to quit the VA job, until time he was reinstated, he was in a non-work status with the Agency. Second, the AJ determined that Complainant’s complaint fails to state a claim because his placement on LWOP status was not discriminatory. The AJ indicated that Complainant’s LWOP placement occurred because his “entitlement to back pay ended when he quit the VA job to engage in real estate ventures.” Finally, the AJ noted that Complainant’s hearing request included a request to consolidate three Agency Numbers: BOP-2011-0246, BOP-2012-0010, and BOP-14-0827. However, the AJ noted that only Agency Number BOP-2011-0246 was before her, and the AJ further noted that the Agency never issued a BOP-14-0827 case number. Because the Agency did not issue a final within forty days of receipt of the AJ’s decision, the AJ’s decision dismissing the complaint became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 2020000735 4 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant generally asserts on appeal that there were material facts in dispute, he has not pointed with any specificity to particular evidence in the investigative file or produced other evidence that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health 2020000735 5 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our independent review of the record indicates that the responsible Agency officals articulated legitimate, non-discriminatory reasons for placing Complainant on LWOP status. The Human Resources Manager (HR Manager) testified that when the Agency appealed the AJ’s initial finding of discrimination, the Agency provided Complainant interim relief and reinstated his position pending the outcome of the appeal. After the AJ’s finding of discrimination had been affirmed, the HR Manager explained that she began the process of “making Complainant whole” as specified by the AJ. However, the HR Manager noted that the AJ’s order specifically instructed that Complainant only be provided back pay until March 10, 2009. Consequently, the HR Manager explained that she had to determine what sort of personnel action she could conduct from March 11, 2009 until Complainant’s reinstatement date on October 24, 2010. Ultimately, the HR Manager stated that she put Complainant in LWOP status “in order to maintain his employment status.” The HR Manager stated as follows: The Judge’s order said to make him whole and she only provided for back-pay and full benefits up until March 10 [2009]. In order to attempt to make him whole, because there was no order for payment for that period, the thing I had to remember is to try to keep him in an employment status, so putting him in leave without pay kept him in an employment status, you know, there’s no break in service or anything. A copy of the AJ’s prior August 30, 2010 decision reflects that the AJ directed the Agency to “pay Complainant back pay and benefits from August 4, 2000 to March 11, 2009.” We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s prior protected EEO activity. CONCLUSION After careful review of the record, we find that Complainant failed to demonstrate that the Agency discriminated against him as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED. 2020000735 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020000735 7 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 30, 2021 Date