Matt M.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 3, 2017

0120143134 (E.E.O.C. Mar. 3, 2017)

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

Matt M.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 01-2014-3134

Hearing No. 410-2012-00130x

Agency No. P20110547

DECISION

On September 11, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s August 15, 2014, 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 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 finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Training
Instructor at the Agency’s Staff Training Academy (STA) facility in Glynco, Georgia. On
May 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian), sex (male), age (53), and in reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964, when:

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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1. On April 12, 2011, the Agency did not give him a cash, performance, or incentive
award (other than a time-off award (TOA)) despite receiving a rating of
“Outstanding” for his performance.

2. On October 4 and 5, 2011, he was falsely accused of being late and was threatened
with being placed on Absence Without Leave (AWOL) if he did not submit a leave
slip.

3. On October 4 and 5, 2011, he was referred for a workplace violence investigation.

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 requested a hearing, the AJ
held a hearing on October 15-16, 2012, and the AJ issued a decision finding no discrimination
on July 2, 2014. The Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

ANALYSIS AND FINDINGS

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. NLRB, 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

We shall assume for the purposes of this decision that Complainant established a prima facie
case for all bases alleged on all claims. We find that substantial evidence supports the AJ’s
finding of no discrimination on all claims.

The record shows that the award distribution was based on the recommendations of the STA
supervisors and the approval of those recommendations by the STA director. Complainant’s
supervisor recommended Complainant for the TOA and the STA Director approved it.
Complainant’s failed to show that his supervisor’s reason for giving the quality step increase
(QSI) to a Hispanic employee was pretextual. Although both Complainant and the Hispanic
award recipient received Outstanding ratings, substantial evidence in the record established that
such a rating does not automatically entitle an employee to a certain type of award and the
recipient, unlike Complainant, received an Outstanding in every element for the entire year.
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Moreover, the supervisor explained that the QSI recipient was a “go-getter” who handled
everything before even being asked, which the STA Director considered adequate justification
for the award. Complainant has not shown that the lack of a cash award or QSI for
Complainant was motivated by discrimination.

We find that substantial evidence in the record supports the AJ’s conclusion that the Agency
did not discriminate against Complainant when Complainant’s supervisor requested that
Complainant submit a leave slip or be charged as AWOL for being tardy to work on October
4, 2011. Complainant’s supervisor testified that in June 2011, he held a staff meeting on
accountability and told them to notify him if employees were going to be late or had to leave
early. In September 2011, Complainant’s supervisor gave a letter of counseling about prior
late arrivals to Complainant. Consequently, when the STA Deputy Director informed
Complainant’s supervisor that the STA Director observed Complainant arriving late to work,
Complainant’s supervisor considered it appropriate to take action. Although Complainant
disputes that he was late to work in October, points out the lack of an official clock, and argues
about whether the unofficial Portal-to-Portal policy measures an employee’s start time from the
parking lot or the building, none of these concerns indicate that the Complainant’s supervisor’s
actions were motivated by discrimination. There is no indication that other similarly situated
persons were treated differently or that the STA Deputy Director, STA Director, and
Complainant’s supervisor did not honestly and reasonably believe Complainant had been tardy.
Further, Complainant’s supervisor testified that neither the Deputy Director nor the Director
instructed him to take any action against Complainant. Rather, Complainant’s supervisor
testified that he requested the leave slip because he had already shown leeway to Complainant.

Regarding claim 3, the record shows that, as a matter of office policy, when an employee
alleges that he or she has felt threatened by a coworker, the Director may convene a threat
assessment panel. Here, Complainant filed a workplace violence complaint against an
employee alleging that he felt threatened by him. The STA Director convened a panel to
assess Complainant’s claim. The day the panel met, the STA Director received a complaint
alleging that an employee felt threatened or stalked by Complainant. The Director testified that
since a panel was already in place, he decided to have the panel evaluate both complaints.
Complainant has not presented any evidence that the Director acted inconsistently with the
Agency’s policy regarding workplace violence complaints or that his prior EEO activity or
alleged bases were a factor in the investigation at issue in claim 3.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, the Agency’s finding of no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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), 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. The requests 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 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.

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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

March 3, 2017
Date