[Redacted], Agnus W., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionJun 27, 2022Appeal No. 2021003455 (E.E.O.C. Jun. 27, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Agnus W.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003455 Hearing No. 420-2020-00223X Agency No. BOP-2019-0137 DECISION On May 28, 2021, 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 May 3, 2021, final order 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. 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 Correction Officer at the Agency’s Prison Camp in Montgomery, Alabama. On October 13, 2019 Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On July 25, 2019, her Supervisor made false statements of unjustified criticism, expressed verbal aggressions, and used bullying tactics; 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. 2021003455 2 2. On August 21, 2019, she was recommended for discipline; 3. On August 26, 2019, she received a Notice of Cease; and 4. On November 9, 2019, a male staff member touched her breast and management refused to give her information for a police report. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and the AJ held a hearing on March 16, 2021. The AJ issued a decision on March 23, 2021. In their decision, the AJ specifically noted that Complainant's testimony, as well as other witnesses, regarding her harassment claims were credible in tone and demeanor. Nonetheless, the AJ determined that the preponderant evidence, through the hearing, did not establish that the Agency's supervisors and managers knew or should have known that Complainant was being sexually harassed, prior to her detailed report. The AJ noted that there was not sufficient information indicating that the Agency should have known about workplace sexual harassment involving Complainant, or any female, until Complainant herself made such a report. Thereafter, the AJ determined that the Agency swiftly and appropriately responded, ultimately resulting in the proposed removal of the perpetrating employee. In sum, after consideration of each of Complainant’s claims and the hearing, along with the record evidence, the AJ determined that Complainant was not subject to illegal discrimination as alleged. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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. Nat’l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015). On appeal, Complainant argues that the AJ abused their discretion by admitting and basing their findings in part on a joint stipulation of facts that was not actually joint. Complainant also argues that the AJ erred and abused their discretion in relying on this joint stipulation while stripping Complainant's counsel of his full right and ability to call witnesses and cross examine fully the Agency witnesses called. 2021003455 3 We note that in Complainant's brief, her attorney cited to the hearing transcript. The cited portion of the transcript states: Finally, the Judge expects full execution of the stipulations that should have been agreed to and filed last Friday. And because neither part has assisted the Judge with classic filings or an exhibit on pecuniary damages, [as] the Judge urged it would have been helpful rather than the filing of unnecessary stipulation objections and proposed findings, for [sic] both lawyers should be stepping up their game, reaching reasonable agreements, and filing proposed findings. This is further justification for the Judge to take over majority control of the hearing and the examination of parties' witnesses. This Judge has only had to do this in one other case much worse than this in which the parties' very fine lawyers didn't even agree to one stipulation. So while you will be allowed examination use of your witness folders, you're not going to be allowed to control your direct examination. See Hearing Transcript at 16, lines 4-23. In the preceding lines, the AJ notes that "because there have been delays due to communication failures and back-and-forth of questioning, you're going to be restricted to direct, a cross, and one redirect." Id. at lines 1-3. In the present case, it appears that Complainant's attorney engaged in a pattern of disruptive or inefficient behavior throughout the discovery process. All representatives, non-attorneys as well as attorneys, “have a particular responsibility to respect the order and authority of the EEO process.” EEO MD-110 at Chap. 7, § V.A. Complainant's representative has not done so. As such, we find no issue with the AJ’s decision prior to the hearing to limit attorney involvement in order to preserve the hearing process. In reaching this determination, we recognize a complainant's right to strong and effective advocacy as well as the hearing process's need for proper demeanor and appropriate behavior. The Commission notes that the AJ has broad discretion throughout the discovery and hearing processes. Here, it appears that the hearing was able to be conducted, and we find that the limited role of Complainant's attorney was at worst harmless. Regarding Complainant's contention that the facts were not jointly stipulated, the Exhibit 1, Joint Stipulations, relied upon by the AJ, appears to be signed by Complainant's attorney. It is not apparent that the stipulations were misrepresented, nor improperly relied upon by the AJ. Moreover, the AJ was able to make their own credibility determinations at the hearing, as well as ask clarifying questions of witnesses. Upon review of the hearing transcript, the AJ decision, the numerous motions throughout the record, and the record as a whole, we find that the substantial evidence support the AJ’s decision. We note that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for their decision. The AJ held a hearing, examined and considered witnesses, as well as Complainant’s testimony. 2021003455 4 Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021003455 5 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 June 27, 2022 Date Copy with citationCopy as parenthetical citation