Lon R.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

0120181725 (E.E.O.C. Sep. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Lon R.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181725

Hearing No. 480-2017-00004X

Agency No. BOP201502038

DECISION

On April 28, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 27, 2018, final order concerning his equal employment opportunity (EEO) complaint
alleging 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

Whether EEOC Administrative Judge correctly granted summary judgment regarding
Complainant’s claim that he was discriminated against on the bases of his race (African-
American), disability (physical), and reprisal (prior EEO activity) when: (1) on January 17, 2014,
his requests for annual leave in lieu of leave without pay were ignored, and he was denied a

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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reasonable accommodation;2 and (2) on June 29, 2015, he learned that his within grade pay
increase was denied based upon his excessive record of being Absent Without Leave (AWOL).

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Officer, GS-
0007-07 at the Metropolitan Correctional Center (MCC) San Diego, California. On October 13,
2015, Complainant filed a formal complaint alleging that the Agency discriminated against him
on the bases of race (African-American), disability (physical), and reprisal (prior protected EEO
activity) as set forth above.

Complainant averred that he was diagnosed with lumbar strain in 1998 and aggravated the
condition when he had an on-the-job injury in 2008. Complainant stated that the condition
sometimes limited his ability to move and run and he could not lift very heavy loads. He stated
that, most of the time, he could perform the majority of his tasks. He further stated that on the
days when his condition was incapacitating, he does not come to work. Complainant stated that
he was hired as a “Disabled Vet,” and the Agency was aware of his on-the-job injury and its
resulting effects on him.

Complainant alleged that the Captain, the Warden, and the Human Resource Manager (HRM)
were the three individuals responsible for the discrimination against him. The Captain was
Complainant’s second line Supervisor. The Captain stated that he did not have any recent
documentation from medical providers about Complainant’s condition(s). The Captain also
denied that he was aware that Complainant had participated in prior EEO activity in the past.

The Warden was Complainant’s third line supervisor. Complainant stated that he was aware of
Complainant’s race and back problem. The Warden stated that he recalled that Complainant had
a back problem.

The HRM was aware of Complainant’s back problem but noted that Complainant was cleared from
Worker’s Compensation “a long time ago.”

On June 29, 2015, Complainant was notified that his within-grade increase was denied. The
Agency’s reasons for not granting Complainant’s within grade pay increase in 2015 was based
upon his failure to meet the “time and grade” or “time-in-grade” requirement. Complainant had
been assessed with 154-AWOL occurrences during the period from 2013 through 2015. The hours
assessed against Complainant while in a non-pay status were subtracted from his work time-in-
grade thus establishing the fact that Complainant did not meet the standard required for a pay
increase.

2 The Agency dismissed this allegation for untimely EEO counselor contact. The EEOC
Administrative Judge affirmed the Agency’s dismissal. Because Complainant does not contest the
dismissal on appeal, we will not address this matter further in this decision.
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While some of Complainant’s AWOL hours were reinstated or converted to Leave without-Pay
(LWOP), based upon Complainant’s submission of adequate medical documentation, the number
was insufficient, and Complainant failed to meet the minimum requirement of time in grade hours.

HRM testified that he reviewed Complainant’s time records and confirmed that Complainant had
551 hours of AWOL during the relevant period and while Complainant had contacted him to
“rectify” the situation, Complainant repeatedly failed to provide the necessary documentation
required to change his AWOLs to some form of leave.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing.
Subsequently, the AJ informed the parties of his intent to issue a decision without a hearing
because he found the record in this matter comprehensive, complete and impartial, and that there
was an appropriate factual basis upon which to render a decision without a hearing. After affording
the parties 15 days to respond, the AJ issued a decision. The AJ found that the record reflected
that Complainant had repeatedly challenged the Agency’s assignment of AWOL hours to him and
that the Agency defended the practice by demonstrating, among other things, that Complainant
had failed to provide sufficient medical documentation.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant, among other things, argued that the AJ erred in granting summary judgment because
there are genuine issues of material fact in dispute.

The Agency, in pertinent part, contends that Complainant’s appeal should be denied because the
evidence supports the AJ’s determination that Complainant failed to establish that Agency officials
subjected him to discrimination or retaliation.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes.

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In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

We must determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. Here, Complainant, however, has
failed to establish such a dispute. Even construing all inferences raised by the undisputed facts in
favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Ultimately,
the AJ correctly determined that there are no genuine issues of material fact or credibility that
merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802: Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine. 450 U.S. 248. 253 (1981).
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Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Assuming, arguendo, Complainant established prima facie cases of discrimination based on race,
disability and reprisal, we find that the Agency set forth a legitimate, non-discriminatory reason
for why Complainant learned on June 29, 2015 that he would not receive a within grade increase.
Because of his excessive AWOLs, he did not meet the time-in-grade requirement that was
necessary to receive a within grade increase. We find no persuasive evidence of pretext here. As
noted by the AJ, there was no evidence demonstrating that Complainant provided the appropriate
and required documentation justifying his “inordinate record” of being absent from work without
proper authorization. We agree. There is simply no evidence indicating that Complainant complied
with the Agency’s procedures relating to medically-related absences. We note that, in addressing
an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition
must consist of more than mere unsupported allegations or denials and must be supported by
affidavits or other competent evidence setting forth specific facts showing that there is a genuine
issue for a hearing. See Celotex, 477 U.S. at 324.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507.
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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 agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2019
Date