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

Equal Employment Opportunity Commission

Feb 20, 2015

0120123296 (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. 0120123296

Hearing No. 520-2011-00329X

Agency No. P20100539

DECISION
On August 25, 2012, Complainant filed an appeal from the Agency’s July 24, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and
accepts it for de novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons,
the Commission AFFIRMS the Agency’s final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Physician's
Assistant at the Metropolitan Correctional Center, New York, New York (MCC). On
September 4, 2010, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of national origin (Arabic), sex (male), religion
(Muslim), disability, and in reprisal for prior protected EEO activity when from April 2008
through September 2010, there were discrepancies in Complainant's buyback leave,
miscalculation of his hours and a salary offset in the following manner: (1) on July 5, 2009,
when the Agency restored Complainant's buyback leave request they failed to credit him four
hours of sick leave and several hours of annual leave; (2) a total of $3,495.54 was deducted
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from Complainant's salary in order to reimburse excess payments made to Complainant
because of errors in his Time and Attendance (T&A) records; and (3) 77 hours of annual leave
from Complainant's second buyback request was never restored to him.

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 timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s September 29, 2011 motion for
summary judgment and issued a decision on May 31, 2012. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

UNDISPUTED FACTS
Complainant has worked for 14 years for the MCC. The Assistant Health Services
Administrator (S1) is Complainant's immediate supervisor. The Health Services Administrator
(S2) is Complainant's second-line supervisor. The Associate Warden (S3) is Complainant's
third-line supervisor. The Warden (S4) is Complainant's fourth-line supervisor.

Complainant is permanently disabled and suffers from osteoarthritis and other knee
impairments which were aggravated by a work-related injury suffered on May 30, 2004. On
April 2005, Complainant applied for and received workers’ compensation for a recurring
injury after experiencing knee swelling. On October 29, 2007, Complainant had surgery to fix
ligaments in his knee. On March 10, 2008, Complainant returned to work on modified duty,
also referred to as Temporary Alternative Duty (TAD), which allowed him to work a
maximum of four hours per day. He also received half of his compensation from the
Department of Labor and the remaining half from the Agency. Soon after returning to work
on March 10, 2008, Complainant submitted to the Safety Manager the required paperwork so
he could buyback the leave used from October 29, 2007 to March 10, 2008. Complainant also
submitted a second buyback leave request in order to recoup the annual leave he used to attend
physical therapy sessions during March 9, 2008 through March 29, 2008.

On April 7, 2008 and April 15, 2008, Complainant received letters from the Department of
Labor's Office of Workers’ Compensation Program (OWCP) informing him that his two
buyback leave requests had been approved. Complainant made numerous inquires about the
status of his leave requests and was told that the forms had to be processed in Grand Prairie,
Texas which is where the Centralized Human Resource center for the Bureau of Prisons is
located. While waiting for his leave to be processed, Complainant noticed discrepancies in his
T&A records and notified S1, S2, and the Human Resources Manager (HR) about the
discrepancies. He also requested an audit of his T&A records. Six or seven months later, HR
conducted an audit of Complainant's T&A records and it was determined that Complainant had
been paid in excess of $5,200.93.

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Complainant requested an explanation for why he owed $5,200.93 and was told that due to
discrepancies in his T&A, he had been overpaid. In February 2009, HR met with
Complainant and explained that because his T&A schedule had not matched his approved TAD
schedule he had received excess compensation which he would need to repay. Subsequently,
the Agency began to deduct $140.00 per pay period from Complainant and eventually the
deduction increased to $150.00 per pay period. In total, $3,495.54 was deducted from
Complainant's salary.

On March 3, 2009, the National Finance Center (NFC) of the U.S. Department of Agriculture
issued a letter to the Bureau of Prisons approving Complainant's initial buyback leave request
from October 29, 2007 to March 10, 2008. On July 5, 2009, the Agency restored
Complainant’s buyback leave from October 29, 2007 to March 10, 2008, crediting
Complainant a total of 144 hours of annual leave and 568 hours of sick leave.

Complainant alleges that the Agency miscalculated his leave restoration and still owes him four
hours of sick leave and seven hours of annual leave. In the summer of 2009, Complainant
provided Human Resources Department with additional paperwork he had independently filed
with the Department of Labor to correct his T&A records, so he no longer owed the Agency.
The Human Resources Department could not process Complainant's additional paperwork
because his T&A records had already been processed and finalized. The Agency attempted to
rectify the situation by holding a meeting between Complainant, S3, S4, and HR to discuss
Complainant's salary offset and his miscalculation complaints. A follow-up meeting was also
held to determine the status of Complainant's concerns.

On October 15, 2009 and on November 20, 2009, Complainant sent a memorandum to S2, S3
and S4 expressing concern about the discrepancies in his T&A records and requesting an
explanation for the delay in processing his buyback leave request and for his salary deductions.
On January 29, 2010, S4 replied to Complainant's memorandum and explained the actions
taken on her part to rectify his situation including forwarding his concerns about his T&A
record to the Employee Services Department. She explained that the delay in processing
Complainant's buyback leave requests was due to delays caused by the Central Human
Resources Center and the NFC. She concluded by stating that the money was deducted from
Complainant's salary because of his failure to repay the agency in the amount of $5,200.93.

On July 23, 2010, HR sent Complainant an email explaining that his second buyback leave
request had been restored but that 91 hours of leave had not been credited back to him because
Complainant would have exceeded the 240 hour annual leave ceiling. Therefore the remaining
balance would be restored in a separate leave account. Complainant alleges that 77 hours of
annual leave from his second buyback leave request was never credited to him. On August
2010, S4 issued a waiver request, which is still pending, that would waive the remaining
balance on Complainant's debt owed to the Agency.

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ANALYSIS AND FINDINGS
The AJ concluded that the pending claims fail to state a claim in accordance with 29 C.F.R.
§ 1614.103 because all three are related to the OWCP claim. Assuming that the claims at
issue here are not collateral attacks, the AJ nevertheless concluded that Complainant failed to
present a prima facie case of disparate treatment on any alleged basis. Specifically, the AJ
noted that several comparator employees who fall outside Complainant’s protected
classifications experienced similar difficulties. The AJ also found that there were no similarly
situated comparison employees who fall outside of Complainant’s protected classifications who
were treated more favorably.

In addition, the AJ determined that aside from Complainant’s bare assertions, the record does
not contain sufficient evidence to refute the Agency’s articulated, non-discriminatory
explanation for the discrepancies in Complainant’s leave buyback and T&A records.1

Specifically, the AJ explains that the articulated reason for the discrepancies is that
"calculations were complex and the processing of these claims was difficult." The AJ notes
that S2 attested that OWCP claims were rare and that in her five years of working at the MCC,
Complainant's case was the first she had personally witnessed involving the OWCP. In Both
S1 and HR testified that the reason for the delays can be attributed to the fact that the
Department of Labor and the Department of Agriculture are involved in the buyback leave
process. S3 testified that Complainant's leave buyback and attendance issues were confusing
situations for the MCC staff, particularly the Human Resource staff. Testimony in the record
shows that the discrepancies come from the complexities of leave without pay and its interplay
with the OWCP. The record shows that the interplay becomes even more complicated when
there is also a TAD. According to management officials, tracking the T&A for an employee
who is working part of the time, going to medical appointments part of the time, and physical
therapy part of the time was bound to lead to discrepancies.
The AJ found that although Complainant argued that the Agency’s rationale is “weak at best,”
he offered no evidence to prove that the Agency's rationale is merely a pretext. The AJ found
that the undisputed record shows the Agency genuinely trying to assist Complainant with his
salary and buyback leave concerns. Complainant attended numerous meetings with S3, S4 and
HR. In addition, the record shows that S4 promptly responded to Complainant's
memorandums and was even willing to put through a waiver (a rare occurrence) to terminate
the garnishment of Complainant's salary. Accordingly, the AJ concluded that the record is
devoid of evidence of discriminatory animus on the part of any management official. We
agree.

1Although Complainant argues that the record contains three witnesses who corroborate his
allegations, a close review of such testimony shows that none of the witnesses possess direct
knowledge of any relevant assertions.
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CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.2

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 tends 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

2 We note that Complainant raises numerous issues that are not before us and, accordingly, will
not be addressed herein.
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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

Date
February 20, 2015