0120111335
06-08-2011
Kevin Harder, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Kevin Harder,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120111335
Hearing No. 410-2010-00025X
Agency No. BOP-2008-0386
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s December 8, 2010 final order concerning
an equal employment opportunity (EEO) complaint claiming 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
During the period at issue, Complainant was employed as an UNICOR
Production Manager at the Agency’s Federal Correctional Institution
in Estill, South Carolina.
On May 19, 2008, Complainant filed the instant formal complaint.
Therein, Complainant alleged that the Agency discriminated against him
on in reprisal for prior protected activity when:
between February 22, 2006 and May 19, 2008, he was subjected to harassment
in the form of internal investigations for unwarranted misconduct
charges, lowered quarterly performance log entries (February 25, 2008),
and unwelcome verbal comments (August 3, 2007 and December 19, 2007),
thus creating a hostile work environment.
Following the Agency’s investigation into the complaint, a hearing was
held before an EEOC Administrative Judge (AJ) on September 30, 2010. The
record reflects that Complainant called only himself as a witness. The AJ
issued a bench decision on October 27, 2010, finding no discrimination.
The Agency issued its final order adopting the AJ’s decision.
In his bench decision, the AJ found that Complainant did not establish a
prima facie case of harassment based on retaliation. Specifically, the AJ
noted that Complainant’s first level supervisor (S1) issued Complainant
a minimally satisfactory log entry because of his failure to reconcile
his credit card balance. The AJ further noted that in April 2008,
Complainant received two more minimally satisfactory log entries by S1.
Moreover, the AJ noted that much of Complainant’s testimony had been
about what he considered to be unethical conduct on the part of employees,
especially a locally-owned business that was related to a named co-worker.
Regarding internal investigations for unwarranted misconduct charges,
the AJ noted that the Warden issued Complainant a Letter of Reprimand
for Unprofessional Conduct on October 15, 2007. The record reflects
that the Warden stated that Complainant used a loud and unprofessional
voice while discussing a time and attendance issue in the Employee
Services Department. The AJ further noted that from November 14, 2007
through September 3, 2008, Complainant was investigated eight times by
the Office of Internal Affairs. Of these eight cases, charges have been
sustained against Complainant for five counts of Unprofessional Conduct,
one count of Failure to Follow a Supervisor’s instructions and, one
count of insubordination.
The AJ noted in her affidavit, the Warden stated that there were several
misconduct charges against Complainant because “he went off, very
unprofessionally which he did.” The Warden stated that during the
relevant time, Complainant never talked to her about being subjected
to harassment.
The AJ noted in his affidavit, S1 stated that he has written memoranda
concerning Complainant’s conduct and sent them to his supervisors
and “they’ve sent them to the SIS or the Warden. But I have never
formally filed any misconduct charges against [Complainant].”
Regarding the lowered quarterly performance log entries, the AJ found
that on February 28, 2008, S1 issued Complainant performance log entries
based upon his performance. Specifically, the AJ noted that Complainant
failed to prepare for an inspection and did not complete the credit card
reconciliations timely.
S1 stated that he wrote Complainant’s log entries based on
his performance. Specifically, S1 stated that Complainant’s
responsibilities include contacting the vendors; and monitoring and
evaluating the tool room and paint booth. S1 stated that based on
Complainant’s performance “or his lack of performance getting ready
for the inspection, and based on the information I received about his
credit card statements…Actually, there was not a lot of progress made
towards getting the tool room back in order. The reports were not
done; reports were not submitted to the Captain. The Captain wanted
a status report of what was going on; how many inventory sheets were
completed.” S1 stated that Complainant “failed to reconcile his
credit card statement on time. That’s one reason why his evaluation
was lowered, because it’s their responsibility to reconcile the credit
card statements in a timely manner. And he refused to reconcile his
credit card statement at the Institution and all the paperwork comes
by the credit card manager. That was one of the main reasons why his
evaluation was lowered.” Moreover, S1 stated that the main reason
Complainant received a “Minimally Satisfactory performance was the fact
that we lost over $29,000 in earnings as a result of him not reconciling
his credit cards in that particular quarter.”
The Warden stated that she recalled Complainant “bringing the log
entries to my attention and if I recall, it had to do with tool control
and other things. It appeared to fall within the element range, because
I had my ESM take a look at it, just to make sure.” The Warden further
stated that she concurred with Complainant’s performance log entries.
Regarding the unwelcome verbal comments, S1 stated that on August 3,
2007, Complainant was responsible of the paint operation and he asked
Complainant a question but he walked away. Specifically, S1 stated that
Complainant “walked away from me when I was asking him a question.
I called him back and asked him to go out to the rear dock, because
I didn’t want to have a conversation in front of inmates standing
around. So, I wanted to go out on the dock and have a conversation about
the situation. He’s the one that got belligerent with me; actually
threatening me and said, he would knock my ass though the wall.’ I
asked him, ‘was he about to fight me?’ And that is what he made
the comment. ‘That he would knock my ass through the wall.’”
S1 stated that he reported the verbal altercation to his supervisor.
S1 stated that he then wrote a memorandum concerning the August 3,
2007 incident and forwarded tit to the Warden.
With respect to Complainant’s allegation that on December 19, 2007,
S1 chastised him and another employee for being insubordinate, in the
presence of the inmates, S1 denied it. Specifically, S1 stated “I
did not do that in front of inmates.”
The Warden stated that Complainant discussed the unwelcome verbal comments
with her and “based on my recollection, [Complainant] disagreed
with [S1’s] instructions – because [Complainant] didn’t want to
become angry again, so he walked away.” The Warden further stated
that Complainant “always mentioned that every time that there was a
disagreement with either his supervisor, [S1], or [named Agency official],
he felt that they were out to get him.”
CONTENTIONS ON APPEAL
On appeal, Complainant merely argues that he was subjected to a hostile
work environment based on reprisal for his prior EEO activity.
ANALYIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the
AJ’s findings on the merits. The AJ’s decision is well-reasoned, and
the assessment that the Agency provided legitimate, non-discriminatory
reasons for its actions, that were not pretextual, is abundantly
supported by the record, as referenced above. Therefore, after a
review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the
evidence, is supported by the record.
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
June 8, 2011
__________________
Date
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0120111335
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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