0120100507
08-02-2011
Mildred R. Greer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Mildred R. Greer,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120100507
Agency No. P-2006-0165
DECISION
On November 5, 2009, Complainant filed an appeal from the Agency's September 25, 2009, final decision concerning her 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 decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Unit Manager, GS-12, at the Agency's Federal Correctional Complex in Yazoo City, Mississippi.
Complainant filed an EEO complaint dated April 26, 2006, alleging that the Agency discriminated against her and subjected her to harassment on the bases of race (African-American), sex (female), age (over 40), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. Management initiated an internal investigation against Complainant for misconduct.
2. Management reassigned Complainant from Unit Three to Unit Two, which was her third reassignment within the last 13 months.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant argues that the Associate Warden and the Warden harassed her based on her age, race, sex, and in reprisal for protected EEO activity when they constantly reassigned her and subjected her to a frivolous OIA (Office of Internal Affairs) investigation. Complainant states that Person A wrote a letter falsely accusing her of intimidating an inmate during a team meeting, when Complainant jokingly told an inmate who was having trouble pronouncing her name to call her "The Queen." She states that when the Warden received Person A's letter alleging Complainant violated policy and misconduct she immediately placed Complainant under investigation. Complainant notes that the Warden stated the allegations were "serious;" however, she notes the Warden never removed the inmate from her Unit nor did she protect him as required. Complainant states the Warden never placed the inmate in Protective Custody in the Special Housing Unit, which is always done when "serious" allegations are made. Complainant states that the Warden took this opportunity to harass her and to stop her career since the Warden knew that while under investigation Complainant could not be promoted. Further, Complainant alleges that the Warden sustained the charges against Complainant although she knew that Person A lied. Complainant states that during the investigation, the inmate in question stated "at no time during the Teaming process was I asked or told by [Complainant] or anyone else to call [Complainant] "The Queen."
With regard to the reassignments, Complainant states that being moved from Housing Unit to Housing Unit was humiliating. She states that when the Warden and Associate Warden arrived at FCC Yazoo City, she was the Unit Manager at the Prison Camp. She states that they immediately moved her from the Prison Camp to Unit Three and they assigned Person B to the Prison Camp. Complainant states that it did not bother her to move from the Prison Camp, but she states she did not want to move to the Unit with two staff members that had caused her pain in the past. Complainant claims the Associate Warden wanted her to hold Person A and Person C accountable. Complainant states that after she told the Associate Warden she would not harass Person A and Person C, the harassment against her began. Complainant states that the Associate Warden called her into her office and told her that she would be moved again because of Person A and that it came from higher up in the chain of command. Complainant states that she attempted to appeal the decision with the Warden and that the Warden stated that "[Person A] has 3 Black, Females in his chain of command" and Complainant is the one that needs to be moved.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (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").
With regard to issue (1), Complainant alleged that she was subjected to discrimination when management initiated an OIA investigation against her based on Person A's false accusations. The Warden noted that Complainant was referred for an OIA investigation for both workplace violence and for unprofessional behavior.
The record contains a November 9, 2005 memorandum from Person A to the Warden in which Person A stated that during a meeting on November 7, 2005, Complainant grabbed his arm in a forceful manner while in his office and then denied him medical treatment for his injuries. Complainant denied physically touching Person A. A Threat Assessment was conducted regarding the incident and on November 21, 2005, the Threat Assessment Team stated that without corroboration for either Complainant's or Person A's statements, the Team was unable to determine if there was contact between the two. The Team stated that even if there was physical contact as alleged, it did not constitute workplace violence since it cannot be said that the contact either caused physical harm or was an act which an objective, reasonable person would have thought was done to inflict physical harm.
The record contains a December 6, 2005 memorandum from Person A to the Warden alleging that during a team meeting Complainant humiliated a Hispanic inmate and then attempted to get the inmate to say "That she is the Queen." The Warden stated that all allegations of staff misconduct are referred to the OIA. The Warden noted that under the Standards of Employee Conduct an employee may not use profane, obscene, or otherwise abusive language when communicating with inmates, fellow employees, or others and he stated that employees are required to conduct themselves in a manner which will not be demeaning to inmates, fellow employees or others under the Program Statement 3420.09. The Warden stated that after receiving the complaint from Person A, a request was sent to OIA the same day. According to the Warden, OIA responded on December 12, 2005, authorizing a local investigation. During the investigation of this incident, the inmate in question stated that at no time during the teaming process was he told to call Complainant "The Queen." Complainant gave a statement during the investigation and stated that while conducting team she had an inmate who could not say her name and, she said she told him to call her "The Queen" but then she said she was joking and told him not to call her that name. The record reveals that on May 24, 2006, allegations of Unprofessional Conduct were sustained in regard to this complaint. The Warden issued Complainant a verbal reprimand on February 8, 2007.
Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for referring Complainant for an OIA investigation, due to the complaints from a co-worker that she engaged in workplace violence and unprofessional behavior. Complainant has not shown that the Agency's actions were motivated by discriminatory animus based on Complainant's protected bases.
With regard to issue (2), Complainant noted that she was reassigned from the Prison Camp to Unit Three in February 2005. On appeal, Complainant stated that it did not bother her to move from the camp to Unit Three; however, she stated that she did not want to be moved to the Unit with the two staff members who had caused her past problems. The Warden stated that Complainant's reassignment was routine and that managers are moved around all the time. The Warden noted that that the prison has a low security facility, known as the Prison Camp, and a medium security facility, as well as the Drug Abuse Unit, and that unit managers are rotated among the facilities and the units to gain experience and to change the supervision of the other unit staff. The Associate Warden noted that Complainant was moved from the Prison Camp to Unit Three because the medium security facility at the prison had been activated in 2005 and there were not enough inmates at the Prison Camp. Complainant stated that she was then reassigned to Unit Three so something would happen to her in that either Person C would do something physical to her or Person A would file a frivolous complaint against her. She noted that Person A ultimately filed a false accusation against her.
The record reveals that Complainant previously filed two EEO complaints under Agency Nos. P20050216 and P20060221 alleging, in part that management ordered and pressured her to "hold accountable" for work assignments two staff members that she did not wish to supervise. The Agency's final decision in Agency Nos. P20050216 and P20060221 noted that the EEO Office had rejected Complainant's claim that she was involuntarily reassigned from her unit on February 21, 2005, because it was outside the forty-five day time frame for contacting an EEO counselor. In its final decision, the Agency noted that the Warden and the Associate Warden explained that Complainant was reassigned due to structural changes at Yazoo City and a new BOP policy about the number of prisoners assigned to each unit manager. The Agency stated that management addressed Complainant's concerns about her assignment to work with two particular employees by conducting a Threat Assessment. The final decision noted that after the Threat Assessment Team concluded that there was no threat to Complainant, they determined that Complainant's assignment was proper.
Complainant filed an appeal from this final decision which was upheld by the Commission in EEOC Appeal No. 0120087892 (September 4, 2009), req. for reconsideration denied, EEOC Request No. 0520100036 (March 11, 2010). Based on her statement in the present complaint that she was not bothered by the move from the Camp to Unit Three, it does not appear that Complainant was challenging her move from the Prison Camp to Unit Three as a separate incident of discrimination. However, to the extent Complainant is challenging the February 2005 reassignment and the issue of her being forced to supervise two staff members who had previously caused her trouble, we note that she previously raised both issues in Agency Nos. P20050216 and P20060221 and thus, is also precluded from re-litigating these issues in the subject complaint. While we will consider the prior two reassignments as background information to the present complaint, we note the sole focus of the present complaint is Complainant's reassignment from Unit Three to Unit Two.
The record reveals that Complainant was reassigned to Unit Two on March 13, 2006. Complainant said she was told that she was being reassigned because Person A wanted her out of the unit. She stated that she was discriminated against because Person A is a White man, and she was being reassigned instead of Person A because of her race, sex, age, and prior EEO activity.
The record reveals that there were six unit managers at FCC Yazoo City during the relevant time. With respect to Complainant's move from Unit Three to Unit Two, the Associate Warden stated that Person D (White male) replaced Complainant in Unit Three because Person D had been in Unit Two for a number of years and needed to be moved. The Associate Warden noted that at the time it was not beneficial to move Person E since he had just started a residential drug abuse program. The Associate Warden stated that Person F was moved from the low to the medium facility that they were just activating. As for the other two unit managers, Person B and Person C, the Associate Warden stated that these two unit managers had transferred in from other facilities and they were placed in the medium security which had just been activated. The Associate Warden noted that Complainant was moved at the end of the rating quarter in March 2006 because that afforded supervisors the opportunity to finish up their evaluations on their subordinate employees. The Associate Warden stated she knew Complainant and Person A were having problems but denies telling Complainant the move was because of Person A.
The Warden explained that the Associate Warden was the one who initiated the move and stated that such moves are routine at the facility. The Warden noted that due to continuing problems with Complainant and Person A, Complainant had asked to move away from Person A and the Warden stated that this also influenced the decision to move Complainant. The Warden stated it was decided to move Complainant as opposed to Person A because Person A has a caseload that he works on as a case manager and, rather than disrupt the caseload of the inmate population, it is easier to move the unit manager than to remove the case manager. The Warden denied making the statement that Complainant needed to be moved because Person A had three African-American supervisors in his chain of command.
Upon review, we find the Agency provided legitimate, non-discriminatory reasons for its actions surrounding Complainant's reassignment from Unit Three to Unit Two. Complainant failed to show by a preponderance of evidence that the Agency's actions surrounding any of her reassignments were based on her race, sex, age, or in reprisal for protected EEO activity.
CONCLUSION
Accordingly, the Agency's final decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
8/2/11
__________________
Date
2
01-2010-0507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
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