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

Equal Employment Opportunity Commission

Sep 19, 2019

0120181514 (E.E.O.C. Sep. 19, 2019)

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

Mathew R.,1
Complainant,

v.

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

Appeal No. 0120181514

Hearing Nos. 530-2015-00132X, 530-2016-00150X

Agency No. BOP-2013-01217, BOP-2015-01741

DECISION

Complainant filed an appeal pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 7,
2018, final order concerning an 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Correctional Officer (Lieutenant), GS-007-11, at the Agency’s Federal Correctional Complex
Allenwood located in White Deer, Pennsylvania.

On January 2, 2014, Complainant filed an EEO complaint, which was subsequently amended,
alleging unlawful employment discrimination. Complainant filed a second EEO complaint on
May 8, 2015 alleging unlawful employment discrimination.

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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After its investigation into the complaints, the Agency provided Complainant with a copy of the
report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant
requested a hearing on both complaints and the two complaints were consolidated. The Agency
submitted a motion for a decision without a hearing. The AJ issued a decision on January 23,
2018, adopted the Agency’s statement of undisputed facts and the Agency’s legal analysis and
issued a decision without a hearing in favor of the Agency.

The Agency issued its final order fully implementing the AJ’s finding that Complainant failed to
prove discrimination as alleged. The Agency’s final order noted Complainant alleged he was
subjected to discrimination on the bases of his race (Caucasian), sex (male), age (42), disability,
and in reprisal for prior protected EEO activity when:

1. In May 2013, Complainant was given the rating of “exceeds” on his annual performance
rating because of a pending Internal Affairs (IA) investigation. In October 2013,
Complainant was removed from the Special Operations Response Team (SORT) at the
Federal Correctional Complex (FCC) in Allenwood, Pennsylvania;

2. On February 5, 2014, Complainant was referred for an IA investigation for conduct
unbecoming of a supervisor because he violated his medical restrictions related to an on-
duty injury and the investigating IA Agent attempted to prevent Complainant from making
pertinent changes to his IA affidavit;

3. On June 2, 2014, Complainant was continued on his Temporary Assigned Duty (TAD) and
allowed to complete general firearms recertification, but not allowed to complete basic
prisoner transport (BPT) recertification;

4. On June 17, 2014, Complainant’s repeated requests for copies of management meeting
minutes regarding Complainant’s TAD were denied;

5. On March 30, 2015, FCC Allenwood suspended Complainant for two days for conduct
unbecoming of a supervisor; and

6. On June 17, 2014, FCC Allenwood failed to reasonably accommodate Complainant’s
disability because the prison provided him with a poor-quality cot on which to rest, as
needed, while at work.2

The Agency noted Complainant’s claim that he was subjected to discrimination when he received
the rating “exceeds” on his annual performance appraisal was untimely raised with an EEO
Counselor. The Agency stated assuming Complainant did not receive the appraisal until May
2013, he had until July 15, 2013, to seek EEO counseling on that issue.

2 We have renumbered the claims in this decision for clarity.
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The Agency noted Complainant did not seek counseling until September 27, 2013, which was
beyond the 45-day deadline. Thus, the Agency stated Complainant’s claim regarding his annual
performance appraisal was untimely.

Regarding his claim about removal from the SORT team, the Agency noted management officials
provided legitimate, nondiscriminatory reasons for removing Complainant from the SORT team
in October 2013. The Region required each SORT team member to requalify annually as to
firearms and physical capabilities and if a member could not requalify, then that member had to
be removed from the team. Given that Complainant was out of work because of a work-related
injury in October 2013, and did not requalify for the SORT team, the regional office directed
Complainant be removed from the team. The Agency noted the Complex Captain stated in October
2013, that the regional office was exerting pressure on the prisons to ensure that all of the SORT
team members could meet the required standards to be on the SORT team and had completed the
annual recertification. The Agency noted at that time, Complainant was off of work and was not
able to meet the standards to be on the team. The Agency noted there was no evidence of improper
bias by Agency officials.

Regarding claim 2, the Agency noted management officials referred Complainant for IA
investigation for not following his doctor’s medical restrictions and possibly filing a fraudulent
workers’ compensation claim. The Agency noted that the Acting Captain of the United States
Penitentiary (USP) at the time stated that on September 5, 2013, Complainant claimed to have
sustained an injury to his back while at work and was out of work as a result because he could not
run or lift objects. The Agency noted Complainant filed an Office of Workers’ Compensation
Claim (OWCP) as a result of the alleged injury. The Agency noted the Acting Captain stated that,
on September 21, 2013, he saw Complainant attend a “pistol shoot” in the local community and
that participants were required to run and lift or drag a dummy as part of the shoot. He said he
believed it was impossible for Complainant to have completed the event without violating his
medical restrictions for his alleged injury. He said he believed Complainant committed
misconduct and reported the potential misconduct to the FCC Allenwood Complex Captain, as he
was required to do by Agency policy. The FCC Allenwood Complex Captain stated she was
required by Agency policy to refer all claims of potential misconduct to IA for investigation. The
Agency noted Complainant conceded that he participated in the “pistol shoot” and that he dragged
the dummy as part of the event. The Agency noted Complainant insisted that he did not violate
his medical restrictions and that he was there with his doctor’s permission. The Agency noted
there was no evidence to corroborate Complainant’s claims that the Agency’s actions were
discriminatory.

Regarding claim 3, the Agency noted in June 2014, Complainant was working four hours a day
monitoring phone calls and still had the medical restrictions of no running or lifting and no inmate
contact. Complainant stated he was allowed to use a firearm, and on June 2, 2014, was allowed to
complete general firearms recertification that all employees needed to complete. Complainant
stated when he tried to complete the BPT recertification that same day, the firing range supervisors
refused to let him complete the BPT course. The Agency stated it had ample reason to deny
Complainant the opportunity to complete the BPT course in June 2014.
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The Agency noted according to the Complex Captain, the BPT was more strenuous than the
general firearms qualification and required a participant to squat, kneel, stand, and move from
point to point while firing a weapon. The Complex Captain said that, based on his knowledge of
the course and Complainant’s medical restrictions, he believed that the BPT course may have been
beyond Complainant’s physical ability at that time and may have exposed Complainant to
additional injury. The FCC Allenwood Complex Captain stated that because Complainant was
not allowed to have contact with inmates in June 2014, Complainant could not perform the BPT
duties, which involved transporting inmates. The FCC Allenwood Complex Captain stated that if
Complainant could not have contact with inmates and perform the BPT duties, then there would
have been no reason at that time for Complainant to have taken the course.

Regarding claim 4, the Agency stated assuming arguendo that Complainant suffered a material
adverse action, management officials provided legitimate, nondiscriminatory reasons for denying
Complainant the minutes from the four safety committee meetings in which he was discussed. The
Safety Manager denied Complainant’s request for the minutes because the committee discussed
other employees and their sensitive medical information and that it was not appropriate for
Complainant to receive such information. The Safety Manager further said that Agency policy did
not require him to release the minutes of the meetings and that, in his 23 years of experience in
prison safety management, he had never released such minutes to an employee. The Agency noted
that other than Complainant’s unsupported, conclusory assertions, there was no evidence of
discrimination in the record.

Regarding claim 5, the Agency noted management officials provided legitimate,
nondiscriminatory reasons for suspending Complainant for two days in March 2015. The Human
Resources (HR) Manager stated that her department drafted the Deputy Captain’s letter proposing
that Complainant be suspended for five days. She explained it was standard practice that, after IA
sustained charges against an employee, her department would review the investigative file, prepare
the proposal letter, and ensure that the proposed discipline was consistent with other cases at FCC
Allenwood. She noted the regional office also reviewed the proposal to ensure the proposed
discipline was consistent with the region and that the Agency’s Office of General Counsel also
weighed in on the decision. The HR Manager stated that after a proposal letter was issued, an
employee had the ability to respond to the decision-maker, which in Complainant’s case, was the
new Complex Warden. The new Complex Warden stated that following the IA investigation into
Complainant’s activities in fall 2013, he reviewed the IA file and the proposal letter, considered
Complainant’s oral and written responses, and made the decision to suspend Complainant for two
days. The Agency noted there was no evidence to establish management’s reasons for suspending
Complainant for two days were a pretext for discrimination. The Agency stated the documentary
evidence confirmed that FCC Allenwood officials determined, based on the IA investigative
materials and Complainant’s own statements, that, in September 2013, he exhibited poor judgment
and exhibited poor conduct for a supervisor.

Regarding claim 6, the Agency noted that in June 2014, Complainant was working a limited duty
assignment of phone monitoring in keeping with his medical restrictions.
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The Agency noted that based on his documentation from his doctor, Complainant requested that
he be allowed to lie down as a reasonable accommodation for his back injury. The Agency noted
the Complex Captain asked Complainant to tell him specifically what Complainant needed as an
accommodation, and Complainant responded, “[W]hatever you see fit.” The Agency noted
thereafter the Complex Captain provided Complainant with a military style cot that Complainant
could set up in the phone monitoring room where he worked. Complainant stated the cot was too
difficult to set up with his bad back, the room was too small for the cot, and that he only used the
cot twice. The Agency noted Complainant never informed management that the cot was an
insufficient accommodation. The Agency found that Complainant never requested management
provide him with a specific item on which to rest, such as a couch, and never alerted management
that the granted accommodation of a cot was insufficient. Thus, the Agency concluded it did not
fail to reasonably accommodate Complainant’s disability by providing him a military cot.

The instant appeal followed. On appeal, Complainant does not challenge the definition of the
issues as listed in the Agency’s final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that the
agency was motivated by discriminatory animus. Here, however, Complainant has failed to
establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of
Complainant, a reasonable fact-finder could not find in Complainant’s favor.

Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’
arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the
evidence did not establish that Complainant was discriminated against by the Agency as alleged.

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CONCLUSION

Accordingly, we AFFIRM the Agency’s final order fully implementing the AJ’s decision finding
no discrimination.

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. 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.
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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 19, 2019
Date