0120113375
12-20-2011
John-Pierre Baney, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
John-Pierre Baney,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120113375
Hearing No. 450-2011-00118X
Agency No. P-2010-0515
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated May 31,
2011, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Cook Supervisor at the Agency’s Federal Correctional Institution (FCI)
in Seagonville, Texas. On September 7, 2010, he filed a formal complaint
alleging that the Agency discriminated against him based on his race
(White), sex (male), and reprisal for prior protected EEO activity when
in August, September, and November 2009, he was subjected to workplace
violence1 by his second line supervisor; the Lieutenant Supervisory
Correctional Officer, who serves in a relief managerial capacity, and a
co-worker; and in February 2010, when he was given a two day suspension
for misconduct by the Warden, which was later reduced to a reprimand.2
On October 7, 2010, the Agency and Complainant settled the two day
suspension matter in the grievance process. The suspension was reduced
to a letter of reprimand, and Complainant agreed not to file any further
grievance, appeal, complaint, or lawsuit in any administrative or judicial
forum regarding the grievance or any allegations or facts related to
the grievance.
The Agency then investigated the complaint. Complainant’s affidavit
was taken telephonically on November 23, 2010, and he later signed it with
edits. Thereafter, he requested a hearing before an EEOC Administrative
Judge (AJ). The AJ dismissed the complainant for failure to timely
initiate EEO counseling. She recounted the Agency’s argument that
the only event which occurred within the 45 calendar day time limit to
initiate EEO counseling was a discrete act (the suspension), which could
not make timely the unrelated hostile work environment that occurred
from August 2009 to November 2009. The AJ further reasoned that the
Agency and Complainant settled the suspension claim in the Agency’s
grievance procedure that permitted allegations of discrimination, and
hence made an election of forums.
On appeal, the parties make no comment. Because incidents that
make up a hostile work environment claim collectively constitute one
unlawful employment practice, the entire hostile work environment claim
is actionable, as long as at least one incident that is part of the
claim occurred within the filing period. However, a discrete act of
discrimination may be part of a hostile work environment only if it is
related to abusive conduct or language, i.e., a pattern of discriminatory
intimidation, ridicule, and insult. A discrete act that is unrelated to
abusive conduct or language ordinarily would not support a hostile work
environment claim. If a discrete act that occurred before the filing
period is part of a timely hostile work environment claim, the charging
party may only challenge the act as part of the hostile work environment
claim. For example, if a pre-filing period demotion is related to a
pattern of abusive conduct or language that continued into the filing
period, then the demotion may be considered in assessing whether the
employee was subjected to a hostile work environment and determining
the appropriate remedy for that violation. However, because no timely
challenge was made to the demotion, it is not independently actionable,
and the charging party would not be entitled to relief, such as back
pay or instatement, for the demotion itself. EEOC Compliance Manual
Section 2, "Threshold Issues," No. 915.003, at 2-75 and 2-76 (May 12,
2000, revised on July 21, 2005). Complainant stated the suspension was
not for the prior incidents he raised. Report of Investigation, at 94.
With the time gap between the suspension and the prior alleged harassment,
and the Warden allegedly not perpetrating the prior alleged incidents,
we find the suspension is not part of the prior hostile work environment.
The suspension is also not part of the prior hostile work environment
claim for a second reason. Complainant did not specifically raise
the suspension in his complaint when he filed it on September 7, 2010.
Instead, he first made it part of his complaint in his affidavit, after
he settled the suspension matter. Hence, while Complainant raised the
suspension in his complaint via his affidavit, we find it was not part
of the hostile environment claim in the complaint since the suspension
matter was already closed.
The Agency’s dismissal is AFFIRMED.
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 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
December 20, 2011
__________________
Date
1 By workplace violence, Complainant meant verbal confrontations, body
language, and denials of things he was requesting, not physical violence.
2 The Agency defined the complaint as whether Complainant was
discriminated against when between August 2009 and September 2010, he
was subjected to workplace violence by his supervisor and a co-worker,
but in the investigation, he described the incidents as occurring as
above, and the Agency and EEOC Administrative Judge then indicated,
without contest, that these were the issues.
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0120113375
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113375