Frank D. Jackson, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionDec 18, 2001
01990090 (E.E.O.C. Dec. 18, 2001)

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.