01976348
02-01-2000
Lester Lonergan, Complainant, v. Janet Reno, Attorney General, U.S. Department of Justice (Bureau of Prisons), Agency.
Lester Lonergan v. U.S. Department of Justice
01976348
February 1, 2000
Lester Lonergan, )
Complainant, )
) Appeal No. 01976348
v. ) Agency No. P-95-8705
)
Janet Reno, )
Attorney General, )
U.S. Department of Justice )
(Bureau of Prisons), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
Complainant alleges he was discriminated against when he received a seven
day suspension for selling unauthorized books and photographs to inmates.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was employed
as a Chaplain, Religious Services Department, at the agency's Federal
Correctional Institution, Bureau of Prisons (BOP), Three Rivers, Texas
facility. Complainant alleged that the agency retaliated against him for
filing a previous EEO complaint when it issued him a seven day suspension.
Although complainant admitted to selling the books and photos at cost,
he testified that he did not act inappropriately, or in contravention
of BOP policy.
Specifically, complainant recalled that when he arrived at the facility in
1992, there were prayer books available at the Chapel for those inmates
who requested them. When the supply was gone, he requested a donation
from the book company. However, when the company requested remuneration
for the books, complainant averred that he took the financial obligation
upon himself by charging the inmates 50 cents per prayer book. He averred
that he made no financial gain from the prayer books, and provided no
gifts to the inmates.
Also, in response to the inmates' request for pictures of the crucillo as
mementos, complainant arranged for reprints of the photo at a low price
for inmates. He stated that he did not believe that his actions were in
violation of BOP policy. Specifically, he averred that although the BOP
policy proscribes employees from "offering" or "giving" employees items,
the policy does not specifically prohibit selling items. Therefore,
based upon policy guidelines, he did not believe that he had violated
the policy.
Complainant also believed others had violated BOP policy without being
punished. Specifically, he averred that the Supervisory Chaplain and
the Volunteer Secretary routinely gave favors to inmates, but were
never punished. For instance, complainant testified that the Volunteer
Secretary gave preferred inmates tape recorders so they could communicate
better with family members. He also stated that the Supervisory Chaplain
was not disciplined when he purchased gourmet meals for preferred inmates.
The Warden, Supervisory Chaplain, and Associate Warden all averred that
complainant was investigated and suspended because he violated BOP policy
when he sold the books and photographs. In response to complainant's
allegations of other misconduct, all denied knowledge of complainant's
allegations, including that inmates were provided gourmet meals for
religious ceremonies in violation of policy. The Associate Warden stated
that the Volunteer Secretary did check out tape recorders to inmates, but
it was pursuant to a sanctioned BOP program, and the Volunteer Secretary
had gone through appropriate channels when requesting the tape recorders.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on March 20, 1995.
At the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant failed to establish a prima facie
case of reprisal discrimination because he presented insufficient
evidence of a causal connection between his prior EEO complaint
and the adverse action. Furthermore, the agency found that it
had articulated legitimate nondiscriminatory reason for its action,
namely, that complainant violated BOP policy which forbids, "offer[ing]
or give[ing] to an inmate...any article, favor, or service[s]...which is
not authorized in the performance of the employee's duties." According to
the Supervisory Chaplain, complainant was suspended for failing to request
permission before procuring and selling materials, and for circumventing
the administrative process.
The agency also found that complainant failed to identify similarly
situated individuals not in his protected class were treated differently
under similar circumstances. Specifically, the agency found insufficient
evidence that others had provided gourmet food to inmates for religious
ceremonies in violation of BOP policy. Assuming that others had engaged
in such activity, there was no evidence that management was aware of
such activity, and failed to respond appropriately.
On appeal, complainant contends that employees provided gourmet meals to
inmates for religious services in violation of policy. He denied that
he made "gifts" to inmates, but rather sold the items to them at cost.
He contends that the investigation into his suspension took too long
and was initially postponed for inappropriate reasons. The agency has
not filed a statement in response to complainant's appeal.
After a careful review of the record, based on McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. In reaching this conclusion,
we note that management reasonably believed that complainant's conduct
constituted a violation of policy. Additionally, complainant has failed
to provide sufficient evidence that this policy was disparately applied.
For instance, we find insufficient documentary or testimonial evidence
that agency employees engaged in misconduct, which went unpunished
by management who were aware of such activity. Instead, complainant
provides a list of food which allegedly had been bought for inmates'
religious services. Furthermore, complainant has provided insufficient
evidence that the actions by management were due to a retaliatory motive.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 1, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.