01990090
12-18-2001
Frank D. Jackson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Frank D. Jackson v. Department of Justice (FPB)
01990090
December 18, 2001
.
Frank D. Jackson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01990090
Agency No. P-97-9121
Hearing No. 240-98-5065X
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.<1>
Complainant alleges he was discriminated against on the bases of race
(Black), sex (male) and reprisal (prior whistleblower activity) when:
(1) on or about February 29, 1996, the agency's Office of Internal
Affairs (OIA) conducted an investigation arising from allegations of
unprofessional conduct against complainant; and (2) on or about May 21,
1996, complainant was suspended for one day for making false and negative
allegations about staff to an inmate. For the following reasons, the
Commission AFFIRMS the agency's FAD.
The record reveals that complainant, a Recreational Specialist at the
agency's Federal Medical Center in Lexington, Kentucky (�facility�),
filed a formal EEO complaint with the agency on October 9, 1996, alleging
that the agency had discriminated against him as referenced above.
The record indicates that complainant was designated to represent an
inmate in a disciplinary matter. After complainant was designated to
represent the inmate, a memorandum written by complainant
was found in the inmate's cell, and statements in the memorandum accused
staff members at the facility of misconduct. After learning of the
memorandum and its contents, the facility Warden contacted the agency's
OIA to investigate the statements in the memorandum, and it was concluded
that complainant had provided false information about co-workers.
The record indicates that complainant admitted to the allegation of
unprofessional conduct, and although it was recommended that complainant
be suspended for five (5) days, the facility Warden decided to suspend
complainant for one (1) day. The facility Warden noted that complainant's
actions undermined the integrity of the institution by failing to report
his allegations to institution officials and instead informing an inmate.
At the conclusion of the agency's investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ initially concluded that complainant failed to establish a prima
facie case of race and/or sex discrimination. Specifically, the AJ
found that complainant failed to demonstrate that similarly situated
employees not in his protected classes were treated differently under
similar circumstances when they were involved in similar unprofessional
conduct. In so finding, the AJ noted that complainant failed to proffer
specific evidence which established that the comparison employee (C1)
cited by complainant engaged in unprofessional conduct similar to
that of complainant. The AJ further found that assuming, arguendo,
that complainant established a prima facie case of race and/or sex
discrimination, the agency articulated legitimate, nondiscriminatory
reasons for the employment action against complainant. The AJ noted
that the agency proffered evidence that on or about January 31, 1996,
a memorandum from complainant was found in the cell of an inmate,
and the memorandum at issue was found after the aforementioned OIA
investigation to contain false and negative allegations about staff to
the inmate. Further, the agency noted that the facility Warden stated
that he suspended complainant for one day for making negative statements
about a staff member to an inmate.
The AJ further found that complainant failed to establish a prima
facie case of retaliation. In so finding, the AJ noted that complainant
alleged that he had been retaliated against for engaging in whistleblower
activities unrelated to EEO matters. The AJ found that the Commission
does not have the jurisdiction to adjudicate retaliation claims not based
on EEO matters, and thus complainant had not established a prima facie
case of retaliation. The AJ further found that even if complainant had
established a prima facie case of retaliation, the agency articulated
legitimate, nondiscriminatory reasons for its actions which had not been
shown to be pretextual in nature.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. The Commission
agrees with the AJ's finding that complainant failed to establish a
prima facie case of race and/or sex discrimination, as there were no
similarly situated employees not in complainant's protected groups who
were treated differently under similar circumstances. In so finding,
we agree with the AJ's conclusion that complainant failed to establish
that C1 engaged in unprofessional conduct similar to the conduct of which
complainant was accused. In addition, we agree with the AJ's finding
that the agency articulated legitimate, nondiscriminatory reasons for
commencing the investigation by the agency's OIA and for disciplining
complainant for one day, and we further find that the agency's reasons
were not pretextual in nature. In addition, we agree with the AJ's
finding that complainant failed to establish a prima facie case of
retaliation, as complainant failed to establish, nor did he allege, that
he was retaliated against by the agency due to prior EEO activity or other
activity protected under Title VII. We thus discern no basis to disturb
the AJ's decision. Therefore, after a careful review of the record,
including complainant's contentions on appeal, the agency's response,
and arguments and evidence not specifically addressed in this decision,
we AFFIRM the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 18, 2001
__________________
Date
1 The Commission notes that complainant's appeal was filed prematurely in
November of 1998 as it predated the issuance of the Administrative Judge's
Recommended Decision and the agency's final decision. Nevertheless,
the Commission will treat the complainant's appeal as timely and address
the issues raised on appeal in this decision.