[Redacted], Dania S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2021003586 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dania S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003586 Agency No. BOP-2019-0270 DECISION On May 27, 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 April 27, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GL- 0318-6, at the Agency’s Federal Bureau of Prisons, Federal Detention Center facility in Honolulu, Hawaii. On February 12, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Hawaiian2), sex (female), color (brown), and 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. 2 We note that we do not consider Hawaiian to constitute a race but we adopt the terminology used by the witnesses. 2021003586 2 1. On November 2, 2018, Complainant was subjected to harassment that involved physical touching by the Environmental and Safety Compliance Administrator (Administrator: Filipino, female, brown skin); 2. On December 5, 2018, Complainant was subjected to a threat assessment panel; and 3. On December 10, 2018, the Psychology Services Chief (Chief: Filipino, Chinese, Spanish; male, color unspecified) issued Complainant a letter changing her working conditions. 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). It is not clear form the record whether Complainant specifically requested a final decision or whether she did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), but in either event, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). We note that on appeal, Complainant has not claimed she was denied a hearing. The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that, with regard to the physical touching, Administrator’s contact with Complainant was “incidental” and insufficient to constitute harassment. With regard to Complainant being subjected to a threat assessment panel and being issued a letter changing her working conditions, the FAD found that Agency officials articulated legitimate nondiscriminatory reasons for their actions, namely that Complainant and a coworker (Coworker: Hawaiian, male, brown) were in the rear gate office, which was not Complainant’s assigned work-area, and loudly tried to pressure Administrator to leave the rear gate office while Administrator was trying to make a work-related telephone call. The FAD further found that Complainant failed to establish that any of the Agency’s actions were based on Complainant’s race, sex, or color. 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. (Aug. 5, 2015) (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”). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2021003586 3 Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established her prima facie case of discrimination. With regard to Chief issuing Complainant a letter changing her working conditions, Complainant averred that she was a “shared Secretary between psychology and religious services” and that she had previously been able to split her day between both offices but that based on the recommendation of the threat assessment panel and after receiving the letter, she was no longer permitted to do so. In addition, Complainant averred that she was now no longer able to leave her work-station for any reason without first notifying management. The Warden (Warden: Asian, male, color unspecified) averred that he decided to initiate the threat assessment panel based on conflicting stories of bullying and harassment from Complainant and Administrator about the events of November 2, 2018. The record shows that the threat assessment panel obtained input from various parties, including Complainant, Coworker, and Administrator, and issued a report finding that Complainant and Coworker had engaged in “bullying and harassment” against Administrator by loudly trying to get her to leave the rear gate office while Administrator was making a work-related telephone call. Warden averred that he adopted the recommendations and findings of the threat assessment panel. We thus find that the Agency has articulated a legitimate nondiscriminatory reason for its actions. The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant argues that she was treated differently than prior secretaries who held the same position but who were not issued letters restricting their movements. 2021003586 4 Complainant further averred that she believes her treatment was based on her race and/or sex because Chief and Complainant’s fellow coworkers are all white males and none of them had their movements restricted either. We note, however, that Complainant has not shown that either any of the previous secretaries in her position, or her current coworkers, while away from their assigned work area, tried to get a management official to leave an office where that management official was entitled to be located conducting official business. Nor has Complainant presented any argument on appeal. Complainant has thus failed to establish that the Agency’s actions were pretextual or that Agency officials harbored discriminatory animus against her protected bases. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that she was subjected to a hostile work environment when she was made to appear before a threat assessment panel and was issued a letter changing her working conditions, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such claims must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment that includes such claims is precluded based on our finding that complainant failed to establish that any of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant describes the following single incident of harassment: On Friday, November 2, 2018, at approximately 8:35am [Administrator] entered the Rear Gate Officer’s Office. I was looking at an email that contained personal information and informed her of that. [Administrator] continued to proceed to the phone located on the opposite end of the desk from the door she entered. She was questioning my whereabouts and forcing her way between the desk and my body. I rolled the chair I was sitting in as far back to [sic] create distance between us but she still touched me and hovered over me. As soon as I was able to I exited the office. I felt violated and immediately sought my options for reporting this. Approximately 20 minutes later [Administrator] returned and stated to me “what are you still doing here?” “I need to make a call.” I explained I am handling a private matter and working on an EEO, she still proceeded to force here way to the phone, while [Coworker] was explaining that there is another phone located right outside the office door and that I was handling a private matter. [Administrator] replied to [Coworker] she can use any phone she wants and this office is cooler, and [sic] [Coworker] knew how I felt about being touch [sic] and intimidated by [Administrator]. Please note that I informed [Administrator] I was uncomfortable with her being in my personal space and not to touch me again. Once I got the information I need [sic] to handle the incident I left. 2021003586 5 When asked specifically how Administrator touched her, Complainant explained “she placed her body between the desk and chair I was sitting on forcing her way to the office phone located at the opposite side of where she entered. Her legs were touching mine (between my lap area) while her upper body hover [sic] over me.” In considering whether the above actions constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the alleged actions either involved or were based on her protected classes. At most, Complainant describes incidental nonsexual physical contact as Administrator aggressively tried to force her way past Complainant in a confined space. Nor do we find that the alleged actions were sufficiently severe and/or pervasive so as to alter the conditions of Complainant’s work environment. We therefore find that Complainant has not shown that harassment occurred. 2021003586 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that Agency’s articulated reasons for its actions are pretextual or that she was subjected to physical treatment based on and involving her protected bases that was sufficiently severe and/or pervasive so as to alter the conditions of her work environment. We therefore AFFIRM the FAD. 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. 2021003586 7 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). 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 March 2, 2023 Date