Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

May 20, 2015

01-2013-2551-0500 (E.E.O.C. May. 20, 2015)

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

,
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120132551

Agency No. BOP-2012-0530

DECISION
Complainant appeals to the Commission from the Agency’s final decision dated May 20, 2013,
finding no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND
In his complaint, dated March 13, 2012, Complainant, a Fabric Worker Supervisor, at the
Agency’s Federal Correctional Institution (FCI) in Talladega, Alabama, alleged discrimination
based on race (Black) and in reprisal for prior EEO activity when on January 14, 2012, his
Warden issued him a written reprimand. After completion of the investigation of the
complaint, Complainant requested a final Agency decision without a hearing. The Agency
thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut.

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. (November 9, 1999) (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
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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”).

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged reprimand. The Warden indicated that he issued the letter of reprimand
to Complainant due to his misconduct charge of Absent Without Leave (AWOL) on August 25
and 26, 2008, pursuant to the Agency’s policy. The Agency’s Human Resource (HR)
Manager indicated that after Complainant was charged with the AWOL, its Special
Investigative Agent (SIA) investigated and ultimately sustained the charge. The HR Manager
acknowledged the fact that it took a while to complete the investigation after the incident due to
a backlog resulting from the retirement and turnover of its staff.

The record indicates that on October 28, 2011, the Warden issued Complainant a proposal to
suspend for one day for his AWOL, described above. On November 2, 2011, Complainant
responded to the proposal indicating that he requested annual leave for August 25 – 30, 2008,
to his then supervisor, now retired, because it was near his birthday, August 22, 2008.
Complainant explained that he “had no reason to think that [he] was not approved for this
leave.” Complainant explained that on August 26, 2008, his supervisor called him and left a
message on his answering machine asking him why he was not at work and if he was sick or
hurt since he was not scheduled to be on leave. Complainant explained that he immediately
returned the supervisor’s call but was unable to get hold of him and left a message that he
previously requested to be off for annual leave. Complainant explained that on August 27,
2008, he talked to the supervisor who “granted [him] the rest of the week off, starting with
Wednesday, August 27.” Complainant explained that when he returned to work following his
annual leave, the supervisor issued him AWOL for his absence on August 25 and 26, 2008.
Complainant explained that “[t]his was an honest mistake.” The record indicates that on
January 4, 2012, the Warden, after considering Complainant’s written response, as well as his
oral response, and his 12 years of employment with no prior misconduct, decided to issue him
the letter of reprimand, at issue, instead of the one-day suspension.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Furthermore, we find that
Complainant failed to show that he was treated less favorably than a similarly situated
employee under similar circumstances. Based on the foregoing, we find that Complainant has
failed to show that the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION
Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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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
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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
May 20, 2015