Darlene F.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

May 10, 2019

0120182235 (E.E.O.C. May. 10, 2019)

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

Darlene F.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120182235

Agency No. BOP-2016-01063

DECISION

On June 18, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 21, 2018, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly found that Complainant was not
discriminated against based on her sex when:

1. On July 18, 2016, Complainant’s supervisor denied her request to adjust her schedule; and

2. From April 2015 to September 2016, Complainant’s supervisor assigned her extra duties
that were outside of her job description and area of responsibilities.

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.
0120182235

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial Program
Specialist at the Agency’s United States Penitentiary, (USP) facility in Atlanta, Georgia. On
September 21, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) as set forth above.

Issue One: Denial of Schedule Adjustment

Complainant alleged that she requested of her second-line supervisor, the Business Administrator
(S2) if she could adjust her schedule from Monday through Friday to Tuesday through Saturday
but S2 denied the request. She explained that she wanted the adjustment so that she could work
on a Saturday when it was easier to get work done in the office.

Complainant alleged that, on numerous previous occasions, she had asked S2 to adjust her
schedule in similar fashion but that he had always denied her requests. She asserted that she made
the requests verbally in the presence of her first-line supervisor, (S1); and that S1 did not oppose
the adjustment.

Complainant stated that without the schedule adjustment, she found it very difficult to complete
all of her assigned duties. She alleged that she was treated differently than two Business Office
employees, (C1 and C2), who, Complainant asserted, S2 routinely allowed to adjust their schedules
as they desired.

S2 asserted that he “allowed Complainant to switch her schedule numerous times,” and denied that
he ever refused to allow her to alter her schedule. S2 explained that there were times when
Complainant worked her full week’s schedule and then requested to work on a Saturday, which
was considered compensatory time (comp time) and required approval from the Associate Warden
and Warden. He added that some of Complainant’s requests to work comp time on Saturdays were
granted and some were denied because of “budgeting reasons.”

A Financial Support Coordinator (FSC1) stated that, prior to taking her new position, she worked
in the Business Office where Complainant now worked; and that although she was unfamiliar with
Complainant’s requests to alter her schedule, S2 had allowed her to alter her days off from time to
time. She added that Business Office personnel had been allowed to work on Saturdays to prepare
for Program reviews, which she did. FSC1’s statements were corroborated by an Inventory
Management Specialist, (IMS1).

0120182235

3
Issue Two: Assignment of Additional Duties

Complainant alleged that over a 17-month period, S2 assigned her extra duties that made it difficult
for her to complete her own work on time and in a satisfactory fashion. She explained that she
had been promoted from Accounting Technician to Financial Program Specialist around the time
this started occurring. Complainant felt that her promotion should have resulted in her not having
to perform some duties, such as paying the Medical Department’s bills, and other duties.

Complainant alleged that C2, should have taken over the medical bills, but she continued to be
assigned such duties; and that S2 also assigned her to process time and attendance (T&A) records
for two departments, the Business office and the Trust Fund; and to run different business reports,
all of which C1 should have performed. Complainant asserted that she spoke to S1 and S2 multiple
times and requested that she not be assigned the additional duties.

S2 asserted that Complainant was assigned additional duties when she was promoted to Financial
Program Specialist because that job came with more extensive duties. He explained that medical
billing, obligation reports, processing T&A records, processing inmate travel, processing uniform
allowances, and other billing matters were within the Financial Program Specialist’s job
description. S2 stated that Complainant had been assigned some of those duties during her tenure
as a Financial Program Specialist. S2 explained that he was unable to assign C1 or C2 similar
duties as Complainant because they were not Financial Program Specialists.

FSC1 explained that when Complainant became a Financial Program Specialist, the Business
Office was short an accountant; therefore, S2 assigned Complainant additional duties of an
accountant. She stated that, other than the supervisor, there was no one else who could do that
work. FSC1 added that Complainant was also assigned to do additional duties of medical billing
and T&A records that an accounting technician such as C1 or C2 could have performed.

Complainant alleged that S2 ignored her requests; and S1 indicated to her that S2 was going to
continue to assign her the additional tasks because he believed that “if he wanted the work done
correctly, then he had to give the work to her. She alleged that S2 told her that he did not “have to
worry about the work when she did the work,” implying, according to Complainant, that she was
a competent employee who could complete the tasks correctly, adding that S2 relied on her “a
whole lot in the office.”

Complainant stated her belief that S2 denied her schedule adjustment and gave her additional
duties because of her sex, explaining that she was the type of person who would not say no when
her supervisor asked her to complete tasks. She asserted that, because of that trait, she thought
that S2 viewed her as a “weak” and “submissive” woman who would not tell him no or otherwise
challenge him. Complainant alleged that S2 told S1 that he assigned Complainant extra duties
because she “wasn’t going to say anything and she was the least resistant and she would get the
job done.” According to Complainant, S2’s statement was indicative of gender bias.

0120182235

4
S2 asserted that he assigned Complainant tasks based solely on her job description and not because
she was allegedly “pliable” and “accommodating.” He denied making the comment that
Complainant “wasn’t going to say anything and that she was the least resistant and she would get
the job done.” S2 also denied making any additional comments about Complainant’s willingness
to complete tasks, reiterating that he only assigned her duties that were within her job description.
He denied taking any actions towards Complainant based on her sex.

FSC1 stated her belief that Complainant was assigned additional tasks because C1 and C2 had
refused to do them, and because Complainant would not similarly refuse. She added that she did
not believe that S2 assigned Complainant the additional duties because of her sex, but rather
because Complainant was “the least resistant.”

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. In accordance with Complainant’s request, 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.

CONTENTIONS ON APPEAL

Complainant submitted a letter in which she reiterates some of her assertions regarding the
assignment of extra duties.

The Agency did not submit a brief on appeal.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978).
0120182235

5
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility
to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext
for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the denial of schedule alteration requests, although Complainant admitted that she had
requested schedule modifications verbally, S2 denied that he refused to allow her the
modifications, asserting that he allowed her to alter her work schedule to accommodate
assignments on several occasions; and witness testimony indicated that S2 would do that. He did
note, however, that he could not approve requests for comp time because those had to be approved
at a higher level. Regarding the assignment of extra duties, S2 explained that, as a Financial
Program Specialist, tasks such as medical billing, obligation reports, processing T&A records,
processing inmate travel, processing uniform allowances, and other billing matters were within
Complainant’s job description. S2 also denied making any of the statements attributed to him; and
explained that neither C1 nor C2 was a Financial Program Specialist so he could not assign the
alleged extra duties that were within Complainant’s job description to them.

In an effort to show pretext, Complainant asserted that S2 denied her schedule alteration requests
based on her sex; and that he allowed C1 and C2 to repeatedly alter their schedules. However,
both C1 and C2 are also female; and FSC1 testified that S2 had also allowed her to alter her
schedule when she worked at the Business Office. Complainant also alleged that S2 assigned her
extra duties that were outside of her job description and area of responsibilities based on her sex,
and because he thought she was submissive and weak. S2 however denied this allegation; and
Complainant herself acknowledged that he relied on her a great deal to get the work done. She
also failed to show that the two male employees under S2’s supervision received more favorable
treatment than she did. Therefore, while S2 appeared to rely on Complainant’s willingness and
ability to complete assigned tasks, there is no persuasive evidence that he discriminated against
her because of her sex. Complainant did not request a hearing or avail himself of the discovery
process which would have allowed for an examination of the credibility or lack thereof of S2’s
explanations. Consequently, we can only evaluate the facts based on the weight of the evidence
presented to us. We therefore find that Complainant has failed to demonstrate by a preponderance
of the evidence that discrimination occurred.

CONCLUSION

Upon careful review of the record, we AFFIRM the Agency’s FAD.

0120182235

6
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.
0120182235

7
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

May 10, 2019
Date