Alyce R.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120172899 (E.E.O.C. Dec. 7, 2018)

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

Alyce R.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120172899

Agency No. BOP201501693

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 27, 2017
final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse (LPN), GS-7, at the Agency’s Federal Correctional Complex (FCC) facility in Florence,
Colorado.

On June 19, 2015, Complainant initially filed an EEO complaint alleging that the Agency
subjected her to harassment and discrimination on the bases of race (Caucasian) and sex (female)
and in retaliation for participation in protected EEO activity. Her allegations generally involved
work hours, scheduling, assignments, and reassignments, occurring between February and July
2015. She alleged that, on February 26, 2015, a male co-worker was scheduled to work
mandatory overtime, but when it was brought to the supervisor’s attention, he changed the
schedule so that the overtime was mandatory for Complainant and not her male co-worker.

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.
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From May to July 2015, she was given additional or overtime work assignments, including
assignments for which she did not receive appropriate credit, while male co-workers were given
credit for such work. In May 2015, she was temporarily reassigned when she had seniority over
male co-workers. On June 17, 2015, she was temporarily reassigned and a male co-worker who
was moved to cover her shift was provided a medication technician to assist him when
Complainant was not provided such assistance.2

Complainant amended her complaint and alleged that, on September 18, 2015, her schedule was
involuntarily changed, impeding her ability to attend religious services; on November 3, 2015,
she became aware her performance evaluation had been lowered in retaliation for EEO activity;
and on November 4, 2015, she received verbal counseling for not completing a task but a male
co-worker was not verbally counseled for not completing his assigned task. Complainant also
indicated that her nursing supervisor counseled her about her use of sick leave, which she found
harassing, as she still had sick leave.

The Agency accepted the complaint and conducted an investigation which revealed the following
pertinent information.

Complainant’s nursing supervisor (male) addressed Complainant’s allegations. On February 26,
2015, he said Complainant was selected for mandatory overtime because she was next on the
mandatory overtime list, in accordance with the Union master agreement. With respect to
Complainant’s allegations of relating to additional work assignments from May to July 2018, the
supervisor said her work assignments were not changed. Rather, she was temporarily assigned to
a different duty post but she was performing the exact same job. The nursing supervisor also
stated that Complainant was not scheduled to work overtime on the dates alleged, and there was
no record that she had worked any extra hours, including any overtime sheets. Her temporary
reassignment was due to a personnel shortage and, prior to Complainant being reassigned,
several other employees had been reassigned such that Complainant was the only employee
available for the reassignment. Upon receiving notice of her temporary assignment, Complainant
called her nursing supervisor demanding an explanation and, upon being informed it was due to a
personnel shortage, Complainant threatened to use sick leave, which the supervisor believed was
an abuse of sick leave privileges. The nursing supervisor also said that he assumed
Complainant’s responsibilities when Complainant was on temporary reassignment, as opposed to
another (male) nurse. With respect to Complainant’s performance evaluation on or about
November 3, 2015, the supervisor said Complainant displayed an inability to complete tasks
such that her performance would be “marginally successful.” With respect to Complainant’s
getting performance counseling for not completing an assignment, other employees, including a
male employee, also received counseling for failing to complete their assignments.

2 Complainant clarified during the EEO investigation that her reassignment was on May 17,
2015, as opposed to June 17, 2015 as initially alleged.
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The Health Services Administrator (male), Complainant’s second level supervisor, also
addressed her allegations. On February 23rd or 24th, the facility needed to process 350 inmates
due to a riot at another facility. Consequently, the Agency’s management had to assign
mandatory overtime. On February 26, 2015, Complainant was put on mandatory overtime due to
lack of staff, in accordance with the Union master agreement.

The Associate Warden (male) indicated that on September 18, 2015, everyone’s schedule within
the Complex was changed, based on institutional needs at the time. Complainant’s new
assignment was also in consideration of some of the limitations in her education or in
professional status. She is a LPN and, therefore, unable to perform the same level of care as a
registered nurse (RN). She was a support nurse and needed to work with an RN. Complainant
was given the opportunity to bid on different shifts and, ultimately selected a shift with an RN
that did not require her to work a schedule that conflicted with her weekend religious activities.

An RN (female) provided a statement indicating that the nursing supervisor treats female
employees more harshly than males, singles out female nurses for discipline, does not give males
certain assignments that he gives females, and does not treat males and females equally. She
indicated that the nursing supervisor and Complainant have a personality conflict.

Another RN (male) indicated that the nursing supervisor treated male nurses more leniently than
Complainant but sex was not a factor, as the nursing supervisor also treated some women
preferentially.

A technician stated the nursing supervisor did not like Complainant and Complainant was very
vocal.

Complainant’s performance log for November 3, 2015 indicates minimally satisfactory
performance with respect to the elements of performs administrative functions, communicates,
and performs technical procedures.

A memorandum from Complainant’s nursing supervisor, dated November 4, 2015, indicates
Complainant did not follow instructions relating to providing care and advocacy to a particular
inmate. Complainant’s disregard for her duties was unacceptable and she has routinely shown
indifference to administrative functions, even after having been instructed that it is part of the
nursing process and patient care.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged.

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The instant appeal followed. On appeal, Complainant has not submitted a brief or argument in
support of her claim.

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. (Aug. 5, 2015) (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”).

Complainant has alleged that the Agency treated her disparately. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). For a complainant to prevail, 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993).

Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. Members of the Agency’s management explained that the FCC facility in Florence
was chronically understaffed and there were exacerbating circumstances that further contributed
to staff shortages or increased workloads. Mandatory overtime was assigned in accordance with
the Union master agreement, which, in part, provided for a mandatory roster that determined
which employee was to be selected for mandatory overtime. Scheduling Complainant for various
shifts was further complicated by the fact that she was an LPN, as opposed to an RN. She was a
support nurse and was required to serve in tandem with a higher-ranking medical professional,
such as an RN. Thus, we find the record is sufficient to establish that Complainant’s changes in
schedule and assignments, including overtime and temporary reassignments, occurring between
February and July 2015, were necessitated by the staffing needs of the facility.

We note that the record establishes that, with respect to the proposed September 18, 2015
schedule change, Complainant’s schedule was subsequently changed and did not interfere with
her religious activities.

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We also find that the Agency’s management’s statements and records, along with other evidence
of record, are sufficient to support the conclusion that Complainant’s performance evaluation
and counseling were related to her unwillingness or failure to perform tasks, or other
performance measures. Therefore, we find that Complainant has not established by a
preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the
Agency were a pretext for unlawful discrimination or motivated by some unlawful
discriminatory animus.

Complainant has also alleged the Agency subjected her to harassment. In Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor
Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently
severe or pervasive to alter the conditions of the complainant's employment and create a hostile
or abusive working environment.” See also Oncale v. Sundowner Offshore Services. Inc., 23
U.S. 75 (1998). The Court explained that an “objectively hostile or abusive work environment [is
created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Thus, a claim of harassment is
actionable only if, allegedly, the harassment to which the complainant has been subjected was
sufficiently severe or pervasive to alter the conditions of the complainant's employment.

We find that Complainant’s harassment allegations can generally be described as relating to
disagreements with managerial decisions and processes, including those relating to assignments,
reassignments, scheduling, and overtime. Without evidence of an unlawful animus, we have
found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of
Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues
between the complainant and the supervisor were because of personality conflicts and
fundamental disagreements over how work should be done and how employees should be
supervised, and there is no indication that the supervisor was motivated by discriminatory
animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No.
0120122332 (Oct. 10, 2012) (Personality conflicts, general workplace disputes, trivial slights and
petty annoyances between a supervisor and a complainant do not rise to the level of harassment).
As a result, Complainant has failed to establish that she was subjected to harassment as well, as
she has failed to establish that discriminatory animus played any role in the Agency’s actions.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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

December 7, 2018
Date