John-Pierre Baney, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionDec 20, 2011
0120113375 (E.E.O.C. Dec. 20, 2011)

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