Leif A. Randa, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons) Agency.

Equal Employment Opportunity CommissionSep 26, 2002
07A10106 (E.E.O.C. Sep. 26, 2002)

07A10106

09-26-2002

Leif A. Randa, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons) Agency.


Leif A. Randa v. Department of Justice, Bureau of Prisons

07A10106

September 26, 2002

.

Leif A. Randa,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Bureau of Prisons)

Agency.

Appeal No. 07A10106

Agency No. P-98-9348

Hearing No. 260-99-8215X

DECISION

Following its September 13, 2001, final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its rejection

of an EEOC Administrative Judge's (AJ) finding of disparate treatment

discrimination by the agency against complainant based on his sex.

The agency also requests that the Commission affirm its rejection of

the AJ's order to pay complainant compensatory damages. Complainant has

also cross-appealed the decision of the AJ. Complainant requests that

we reverse the finding by the AJ on the issue of sexual harassment,

and further requests an increase in the amount of compensatory damages

awarded. For the following reasons, the Commission affirms the agency's

final order.

BACKGROUND

Complainant is a Cook Supervisor at the agency's Federal Prison Camp

in Duluth, Minnesota. In September 1996, the inmates of the prison

were allowed to put on a comedy show. Prior to their performance,

the inmates involved were required to submit a script for approval

by prison officials. The record indicates that there were two scripts

submitted and, eventually, at least one of them was approved. The record

does not conclusively indicate what version of the script was approved.

As part of the approval process, the inmates involved were repeatedly

advised that mimicking of prison officials was strictly prohibited.

Moreover, complainant himself specifically warned a particular inmate

(RI) not to portray him in any manner during the show. Complainant did

so because RI had imitated complainant in a previous comedy show, which

caused complainant great distress and embarrassment.

Despite the general warning of agency officials and the direct order

of complainant, during the comedy skit, RI portrayed a food service

employee that, according to witness testimony, was clearly supposed to

be complainant. Witnesses and complainant testified that the costume

RI was wearing, the mannerisms he displayed and the general manner of

speaking were all a clear parody of complainant.

Although not present for the actual show, complainant quickly learned

of the parody the next day when inmates came through his food service

line and made embarrassing, teasing and insubordinate comments to him,

referencing the comedy show. Complainant requested that he be allowed

to view the video of the show that was in the agency's possession.

After viewing the video tape, complainant filed an incident report citing

various policy violations that occurred during the show, including

the fact that RI disobeyed his direct order not to imitate him during

RI's act.

This report was not investigated, however, for several weeks, until the

Warden of the facility learned that complainant had filed the instant

complaint. Complainant's initial incident report was shredded by an

agency official. Complainant, believing himself to be the victim of

discrimination, filed a formal EEO complaint with the agency on December

28, 1997, alleging that the agency had discriminated against him on the

basis of sex (male) when:

an inmate was allowed to imitate him in a comedy skit;

an inmate was allowed to sexually harass him through his parody of

complainant and other inmates were permitted to use vulgar language; and

his allegations of improper conduct by an inmate were not promptly

investigated.

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an AJ.

Prior to the hearing, the AJ granted the agency's motion for summary

judgment as to the issue of sexual harassment, finding that complainant

did not establish he was singled out for satirical comment by RI

because of his sex. Following the hearing, the AJ found that complainant

established a prima facie case of sex discrimination when his allegations

of misconduct by an inmate were not promptly investigated.<1> The

AJ found that the agency articulated a legitimate, nondiscriminatory

reason for its actions by stating that complainant's allegations were

initially thought to be without merit because the inmates involved in the

comedy skit had prior approval of their material. The AJ then summarily

concluded that complainant rebutted the agency's proffered explanation,

thereby finding that complainant established that more likely than not,

the reasons provided by the agency were a pretext for discrimination.

The AJ determined that complainant was discriminated against, based

on his sex, when his allegations were not immediately addressed and

investigated. The AJ concluded that allegations of misconduct made

by female agency employees were addressed without delay, unlike the

allegations of complainant.

The agency's final order rejected the AJ's decision. On appeal, the

agency argues that the AJ erred when he concluded that allegations made

by female employees were immediately addressed, while those of male

employees were not. The agency argues that the substantial evidence in

the record does not support this finding. The agency further argues that

the AJ has overstated the testimony of two agency officials. Lastly, the

agency argues that the delay in investigation did not render complainant

aggrieved for purposes of stating a claim.

In his cross-appeal, complainant argues first that he was aggrieved by

the agency's lack of action in that his authority was undermined, his

confidence in agency procedure was significantly lessened, and his mental

health suffered as a result of the ridicule received by inmates and agency

staff alike. Complainant further argues that the AJ erred in concluding

he was not subjected to sexual harassment because complainant found the

sexual comments and profane language uttered by other inmates in the show

to be highly offensive. Complainant also states that because RI made

reference to a body part, his back, this constituted sexual harassment.

Finally, complainant argues that while the finding of discrimination

by the AJ was correct, the award of $1500 in non-pecuniary damages was

not sufficient to adequately compensate him for the emotional pain and

anguish he suffered.

ANALYSIS

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).

After a careful review of the record, we find that the findings of fact

are not supported by the substantial evidence of record. We find that

complainant has not established a prima facie case of disparate treatment

based on his sex because he failed to produce either evidence that he

was treated less favorably than a similarly situated woman, or evidence

that otherwise supports an inference of discrimination.

In finding that complainant was subjected to disparate treatment based

on his sex, the AJ relied on the testimony of an agency official who

described an incident where a female correctional officer alleged improper

conduct by an inmate and said allegations were immediately investigated.

The AJ also stated, in concluding that complainant was discriminated

against, that several witnesses testified that the incident reports of

female staff members were investigated immediately, while complainant's

was not investigated for months.

We concur with the agency that the female correctional officer is not

an appropriate comparison employee as she was not similarly situated

to complainant for several reasons. In reaching this conclusion, we

note that it is well established that in order for comparative evidence

relating to other employees to be considered relevant, all relevant

aspects of the employees' work situation must be identical or nearly

identical, i.e., that the employees report to the same supervisor,

perform the same job function, and work during the same time periods.

See Stewart v. Department of Defense, EEOC Appeal No. 01A02890

(June 27, 2001); Jones v. United States Postal Service, EEOC Appeal

No. 01983491 (April 13, 2000); Hunter v. United States Postal Service,

EEOC No. 05960762 (October 1, 1998). The female correctional officer

and complainant were not similarly-situated in any respect other than

their mutual employment by the agency. The positions were very different

and they worked in different departments within the prison. Moreover,

the incident report submitted by this officer was done so more than five

years prior to when the instant complaint was made by complainant, when

the prison was under a different warden and administration. Further,

there is a significant distinction between incidents and the severity

of attention warranted. Finally, it is notable that the skit of RI was

previously approved by an agency official, as complainant himself admits,

while the behavior complained about by the female correctional officer

was not. Accordingly, as a matter of law, we find that the identified

comparison employee is not similarly situated to complainant.

Further, assuming, arguendo, that complainant can establish a prima

facie case of sex discrimination, we nonetheless find that the agency

articulated a legitimate non-discriminatory reason for its actions.

Namely, the agency stated that complainant's initial complaint was not

investigated precisely because the skit had been pre-approved. Thus,

agency officials felt that complainant's allegations did not need to be

investigated. We do not agree with the AJ that complainant successfully

rebutted this reason.

The record indicates that all incident reports are investigated promptly.

While the statement by the AJ that two witnesses, both correctional

officers, testified that the incident reports of female staff members were

investigated immediately is technically correct, a more accurate summary

of the testimony given was that all allegations of inmate misconduct

were immediately investigated, with the exception of complainant's.

Neither witness stated that the incident reports of female staff members

were treated more seriously or dealt with more swiftly. In fact, both

witnesses stated they believed that all incident reports are investigated

immediately.

Of the seven witnesses that testified during the hearing, only one witness

other than complainant himself actually stated that he believed incident

reports by female staff members were taken more seriously than those

of male staff members. This witness offered no evidence or probative

examples to support his opinion. Thus, it is the conclusion of this

Commission that the evidence in the record is not adequate to support

the conclusion drawn by the AJ.

Regarding the issue of sexual harassment, we agree with both the AJ and

the agency that complainant was not sexually harassed. Although the

language used in the show was profane and objectively offensive, it was

not so offensive so as to alter the working conditions for complainant.

Further, the specific parody of complainant was not at all sexual

in nature. Therefore, after a careful review of the record, including

arguments and evidence not specifically discussed in this decision, the

Commission affirms the agency's final order. As complainant is not the

prevailing party in this complaint, he is not entitled to compensatory

damages.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 26, 2002

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 We note that the AJ's decision was read into the record on July 19,

2001. The record contains a copy of the decision which reflects that

it was received by the agency on August 13, 2001. Complainant makes no

claim that the AJ's decision was issued earlier.