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.