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

Equal Employment Opportunity Commission

Apr 14, 2022

Appeal No. 2021000335 (E.E.O.C. Apr. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Windy H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021000335 Agency No. BOP-2019-0239 DECISION On October 18, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 22, 2020 final decision 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Case Manager at the Agency’s Federal Correctional Institution (FCI Elkton) in Lisbon, Ohio. On March 7, 2019, Complainant filed a formal complaint claiming that the Agency discriminated against her based on race (African American), disability, and in reprisal when: 1. From September 2016 to January 2019, Complainant was subjected to ongoing harassment and bullying in the form of unprofessional behavior, including the shredding of Complainant’s work product, hanging up on Complainant’s calls, slamming doors, name-calling with profanity, defamation of character, HIPPA 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. 2021000335 2 violations, and management’s failure to appropriately handle Complainant’s claims of harassment; 2. On October 22, 2018, Complainant was not selected for the position of Material Handler Supervisor, advertised under Vacancy Announcement Number ELK-2018- 0006; 3. On November 8, 2018, Complainant was not selected for the position of Contract Specialist, advertised under Vacancy Number ELK-2018-0006; 4. On November 15, 2018, Complainant’s supervisor threatened to cancel her previously approved annual leave in retaliation for Complainant reporting an issue to the union. Additionally, Complainant alleges that her supervisor denied her access to union representation in connection with a disciplinary matter. Complainant further alleges that her supervisor issued her an unfavorable log entry; 5. On November 28, 2018, Complainant was not selected for the position of Human Resources Specialist, advertised under Vacancy Announcement Number ELK-2018- 0023; 6. On January 2, 2019, Complainant was not selected for the position of Associate Warden’s Secretary, advertised under Vacancy Announcement Number ELK-2018- 0027; 7. On January 8, 2019, Complainant was not selected for the position of Case Manager, advertised under Vacancy Announcement Number ELK-2018-0008; 8. Sometime in January 2019, Complainant was not selected for the position of Accounting Technician, advertised under Vacancy Announcement Number ELK- 2019-0003; and 9. Sometime in January 2019, Complainant was issued an unfavorable quarterly evaluation. On August 15, 2019, the Agency dismissed claim 2 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). In addition, the Agency stated that to the extent that some of the subject claims address failure to promote her in retaliation for engaging in protected EEO activity, those claims have been subsumed into the ongoing class action of Turner v. Department of Justice, EEOC No. 541-2008-00255X, and did not adjudicate them. We will nonetheless address the non-selection claims on the remaining bases. 2021000335 3 After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on September 22, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact: Claim 2 The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in relevant period, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. Under 29 C.F.R. § 1614.105(a)(1), an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, the effective date of an alleged discriminatory personnel action or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The record reflects that claim 2 occurred on October 22, 2018, Complainant was not selected for the position of Material Handler Supervisor, advertised under Vacancy Announcement Number ELK-2018-0006. The record also discloses that Complainant did not initiate contact with an EEO Counselor on this matter until December 18, 2018, which is beyond the 45-day limitation period. Accordingly, the Agency’s dismissal of claim 2 for untimely EEO counselor contact is affirmed. Various Non-Selection Claims 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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. 2021000335 4 Where, as here, 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 and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions relating to disparate treatment. Complainant has worked for the Agency since 2013. Complainant was a Unit Secretary at the Federal Correctional Complex in Elkton, Ohio (FCI Elkton). The Warden (Caucasian, Multi-Cultural background including Native American) was the selecting official for the subject positions. He noted that he had no involvement with the Contract Specialist position. He stated that it was his understanding that the selection was made by the Acting Warden. With respect to the Human Resources (HR) Specialist position, the Warden stated that while he believed Complainant was in the Best Qualified group, she was not the best candidate for the HR Specialist. position. Regarding the Associate Warden’s secretary position, the Warden stated that he selected Complainant as a Case Manager. Moreover, the Warden stated that while Complainant claimed she was not selected for the Accounting Technician position, he stated that he had indeed already selected Complainant as a Case Manager the prior month. The record evidence supports the Agency’s conclusion that Complainant failed to prove, by a preponderance of the evidence, that the reasons proffered for the selections were a pretext designed to mask a discriminatory motivation. Despite her assertions to the contrary, Complainant has not shown that the alleged disparities in qualifications between her and the selectees were “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [him] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). Quarterly Evaluation Claim Complainant asserted that sometime in January 2019, she was issued an unfavorable quarterly evaluation. The Warden stated that he was not aware of Complainant receiving an unfavorable quarterly evaluation. Moreover, the Warden stated that Complainant appears to have flourished in her Case Manager position. The Warden stated further that Complainant has done an excellent job during the Warden’s tenure, and that he had the expectation that she will have a successful career with the Agency. The record reflects that management initially lowered any of Complainant’s ratings in 2019 from prior rating periods. 2021000335 5 However, Agency management later upgraded those changes, such as there was no decrease in her annual evaluation from the 2017-2018 cycle to the 2018-2019 cycle. Again, beyond her bare assertions of discrimination, we conclude Complainant provided no evidence that discriminatory or retaliatory factors played any role in the evaluation. Harassment/Hostile Work Environment To prove her harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, Complainant alleged that from September 2016 to January 2019, Complainant was subjected to ongoing harassment and bullying in the form of unprofessional behavior, including the shredding of Complainant’s work product, hanging up on Complainant’s calls, slamming doors, name-calling with profanity, defamation of character, HIPPA violations, and management’s failure to appropriately handle Complainant’s claims of harassment. The Unit Manager (UM) (Caucasian) stated that he started supervising Complainant in April 2018 and that Complainant was promoted to Case Manager around December 2018. He did not discuss Complainant’s injury or any matter related to the injury. UM acknowledged that he recalled on one occasion having a “one-on-one” conversation, with another employee, with no intention of having anyone else be privy to the conversation. UM asserted, however, that he said nothing inappropriate, and that Complainant in turn, did not say anything inappropriate to him. Regarding Complainant’s claim that her team were frustrated with her because she was injured and was off-duty, UM noted that the team never expressed any frustration to him on this matter. He acknowledged that there were several staff members were injured and efforts were made to accommodate them. In Complainant’s case, UM indicated that he assigned work which Complainant was able to perform, and he believes that he accomplished that effort. UM further stated that in several instances, he and Complainant would be engaged in a discussion, a Union representative would arrive, and the conversations would continue, without any threatening language being used. Regarding claim 4, Complainant alleged that on November 15, 2018, UM threatened to cancel her previously approved annual leave. UM explained when Complainant returned from maternity leave, UM informed her that she had some use or lose leave to use by the end of the year. 2021000335 6 UM stated at that time Complainant may have been selected for Case Manager and he found some secretary work that did not look like it would be completed before she left to work as a Case Manager. UM stated that he asked Complainant how she was doing to use the leave when she had work pending. Furthermore, UM stated that Complainant ended up completing the work and was able to go on leave. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, disability or retaliatory animus. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision, finding no discrimination for the reasons discussed above. 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, 2021000335 7 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). 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. 2021000335 8 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 April 14, 2022 Date