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

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2021003303 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hyo E.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021003303 Hearing No. 510-2018-00058X Agency No. BOP-2016-01157 DECISION 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 20, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Correctional Program Officer (Unit Manager), 006, GS 12 at the Agency’s Federal Correctional Complex (FCC), United States Penitentiary 1 (USP1), in Coleman, Florida. 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. 2021003303 2 On November 29, 2016, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her race (White), sex (female), and in reprisal for prior protected EEO activity2 in relation to the following: 1. On August 2, 2016, Complainant was notified that she was not selected for the Correctional Institution Administrator (Camp Administrator) position, GS-13, annulment number ARO-2016-0707-Coleman, FL. Additionally, Complainant alleges that the Agency has used Office of Internal Affairs (OIA) process as a means to sabotage her application. Complainant says that her non-selection claim is based on race discrimination and reprisal.3 2. From October 2016 to December 13, 2016, the Federal Bureau of Prisons (BOP) management subjected Complainant to harassment by, among other things, denying her the opportunity to participate in an operational review, consistently making decisions and taking action with regard to Complainant’s caseload without her input or participation as the Unit Manager, and decreasing the number of personnel assigned to assist Complainant with her workload. Additionally, Complainant claims that management subjected her to conduct and comments of a sexual nature. Complainant says that her harassment claims are based on sex discrimination and reprisal. After its investigation, 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 timely requested a hearing. However, Complainant subsequently withdrew her hearing request and the AJ remanded the complaint to the Agency. 2 Complainant testified that she participated in a class action lawsuit, White, et. al, v. Sessions, EEOC No. 510-2012-00077X, filed against the Agency on November 18, 2011. The class action involved allegations of widespread inmate sexual harassment at the FCC Coleman since February 6, 2011. Ultimately, the class agents signed a December 5, 2016 settlement agreement with the Agency that provided a monetary fund for class members of up to $20 million and extensive programmatic relief. Thereafter, Complainant became the class representative on or about March 1, 2017, and was responsible for ensuring that the Agency complied with the terms of the December 2016 settlement agreement. 3 The record indicates that race is the only basis for discrimination regarding this claim following the Agency’s January 31, 2017 letter informing Complainant that her claim of retaliation arising from her non-selection for the Camp Administrator position would be subsumed into another class action lawsuit, Turner v. Dep’t of Justice, EEOC No. 541-2008-00255X, which was subsequently accepted by the Commission on September 15, 2015. See Complainant v. Dep’t of Justice, EEOC Appeal No. 0720110008 (Sept. 15, 2015). 2021003303 3 On April 20, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that she was discriminated against and subjected to discriminatory and retaliatory harassment. Additionally, Complainant also argues, in pertinent part, that the Agency inappropriately limited the scope of her harassment claims to October 2016 to December 13, 2016. ANALYSIS AND FINDINGS Preliminary Matter - Claims at Issue As an initial matter, we address Complainant’s argument on appeal that the Agency inappropriately limited the scope of her harassment claims to October 2016 through December 13, 2016. Complainant asserted that she had alleged other harassment incidents that occurred before October 2016, which the Agency failed to include. Our review of the record indicates that prior to Complainant’s withdrawal of her hearing request, the assigned AJ issued an April 12, 2019 Order denying Complainant’s request to amend the complaint to include alleged incidents occurring before October 2016. Specifically, the AJ determined that Complainant had filed prior EEO complaints in 2011 and again in 2014. However, the AJ explained that Complainant failed to raise these additional claims in the prior complaint. Therefore, the AJ determined that Complainant had the opportunity to raise these claims, but Complainant failed to do so. We find no basis to disturb the AJ’s April 12, 2019 Order. Therefore, we find that the harassment claims at issue occurred from October 2016 through December 13, 2016. Merits of the Claims Disparate Treatment (Non-Selection) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2021003303 4 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the Agency articled legitimate, non-discriminatory reasons for not selecting Complainant for the Camp Administrator position. The Warden at the FCC Coleman’s Medium Security Institution (MSI Warden) stated that Complainant applied for the Camp Administrator position which was in the MSI. The MSI Warden further explained that normally the selection process involves input from the Wardens and Associate Wardens with recommendations to the selecting official - the Regional Director. However, in this case, the MSI Warden explained that the Wardens and Assistant Wardens made no recommendations because they did not have a consensus on the Best Qualified lists of candidates, which included Complainant. Consequently, the Regional Director was the sole decision maker. A copy of the position description indicates that supervisory work constituted 25% of the position. Additionally, the position required “broad knowledge in the correctional field and wide knowledge of various institutional activities.” The position also required knowledge of supervisory and managerial duties which included performance monitoring, Master Agreement, Standards of Conduct, and incentive awards policy sufficient to carry out the human resource management responsibilities of the position. The record indicates that both Complainant and the Selectee (who Complainant identifies as a Hispanic male) received “above average” rating on their reference checks. Notably, the USP1 Assistant Warden was responsible to for completing Complainant’s reference check. The record further indicates that Complainant and the Selectee had extensive management experience. Complainant’s resume reflects that she had management experience by serving as a Unit Manager, Correctional Treatment Specialist, and as a Correctional Officer at the Agency. The Selectee’s resume reflects that the selectee had managerial experience serving as a Lieutenant, a Special Investigative Supervisor, and Special Housing Unit Lieutenant at the Agency. Here, Complainant alleged that the MS1 Warden did not select her for the position because of she believed that the MS1 Warden only promoted Hispanic employees. However, the record indicates that the MS1 Warden was not the selecting official for this position. The MS1 Warden explained that the Regional Director made determination based on applicant reference checks and supporting documentation complied by the Consolidated Staffing Unit, and without any recommendation from the Wardens or Associate Wardens. 2021003303 5 Complainant further alleged that she was more qualified for the position than the Selectee because she had the necessary experience with planning and implementing Agency programs, while the Selectee did not. However, our review of the position description does not indicate that program planning and implementation were more desired than the other responsibilities identified in the position description. Here, both Complainant and the Selectee had expansive management experience, and gained that experience by serving in different positions. However, there is no indication that the nature of Complainant’s position as Unit Manager made her more qualified than the Selectee’s experience as a Lieutenant and Special Investigator. We also address Complainant’s allegation that the OIA process was used against her which jeopardized her selection for the Camp Administrator position. The record indicates that Complainant was investigated for another incident. However, that investigation was initiated by an inmate who was in Complainant’s unit. The inmate made allegations against Complainant and other staff and the matter was investigated by the OIA in July 2016. Ultimately, Complainant was notified that she was exonerated in September 2016. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race. Harassment/Hostile Work Environment To prove her claim of hostile environment harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex and reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Our review of the record reflects that Complainant was not subjected to discriminatory harassment as alleged. In her affidavit, Complainant raises several harassment claims, some of which allegedly occurred before or after the relevant period of October 2016 through December 13, 2016.4 4 Many of these incidents involved Complainant’s disagreements with management’s decisions regarding work assignments for Complainant’s staff, monitoring Complainant’s staff arrival and departure times, Complainant’s access to resources to perform her duties as Class Representative, and requirements that Complainant report her whereabouts. 2021003303 6 As previously discussed, we limit our discussion of alleged harassment incidents occurring during the period at issue. Additionally, we note that Complainant repeatedly asserts that management retaliated against her because of her participation in the civil lawsuit and her additionally for her role as Class Representative. However, Complainant testified that she became the Class Representative on or about March 1, 2017. Therefore, Complainant cannot allege retaliatory discrimination due to her position as Class Representative because she became the Class Representative after the alleged incidents at issue. Nevertheless, we find that Complainant does have a viable retaliatory harassment claim, during the period at issue, with respect to her participation in the class action which was filed in 2011 and ultimately resolved via a December 2016 settlement agreement. Operational Review Complainant testified that in October 2016, she was denied the opportunity to participate in an Operational Review even though she had participated in the past. The MSI Warden acknowledged that Complainant has participated on an Operation Review conducted from August 31, 2015 through September 4, 2015. However, the MSI Warden denied conducting an Operational Review in October 2016. Rather, the MSI Warden explained that a follow-up review to the Correctional Programs Review was conducted from October 24 - 28, 2016. Because it was a follow-up review, the MS1 Warden stated that no Unit Managers were involved. Instead, only the Deputy Case Managers, Case Managers, Supervisory Correctional Systems Specialist and Assistant Department Heads were asked to participate to develop the control measures to prevent the reoccurrences of the identified deficiencies. A copy of the November 7, 2016 follow-up review report reflects that a follow-up review was conducted in the Correctional Programs from October 24 - 28, 2016. Inmate Decisions Complainant further asserted that management would make decision regarding inmates on her case load without discussing the matters with her. Specifically, Complainant stated that management reassigned an inmate, on December 5, 2016, who was stationed in her housing unit, and that management did not inform her of the change. Complainant described another instance where management reassigned an inmate to her unit with a history of assaultive or sexual misconduct behavior without discussing the matter with her first. Contrary to Complainant’s assertions, the UPS1 Associate Warden testified that there are circumstances where, due to the security and orderly operation of the institution, decisions are made to move inmates without consultation of staff. Sexual and Retaliatory Comments 1. Email Queen 2021003303 7 Complainant testified that the UPS1 Assistant Warden referred to her as “e-mail queen.” Complainant explained that she had informed the UPS1 Assistant Warden that he had previously requested all Unit Manager submit their leave requests and Complainant asserted that she was following his instruction. In response, the UPS1 Assistant Warden emailed on Complainant on December 6, 2016, stating, “Prove it e-mail queen!” Regarding referring to Complainant as “e-mail queen,” the UPS1 Assistant Warden stated that Complainant had previously referred to herself as an “e-mail queen.” The UPS1 Assistant Warden explained that he had previously asked her why she issued so many emails and her response was, “they don’t call me ‘the email queen’ for nothing.” Consequently, the UPS1 Assistant Warden asserted that his comment was unrelated to the class action lawsuit. 2. Special Housing Unit Meeting Complainant further testified that she attended a Special Housing Unit (SHU) meeting on December 13, 2016. During this meeting the UPS1 Assistant Warden wanted to know why one of Complainant’s inmates was assigned to the SHU. Complainant indicated that a co-worker (CW1) responded, “He is the one who pulled dick out on me.” After CW1 made the comment, Complainant stated that the UPS1 Assistant Warden corrected CW1 in a “condescending tone” by informing her that “penis” was the more appropriate word to use. Complainant asserted that the UPS1 Assistant Warden looked at her direction when he made the comment. Although CW1 apologized, Complainant stated that the UPS1 Assistant Warden then proceed to place his hands as though they were cuffed and asked, “wait a minute, [CW1] how could an inmate who is handcuffed and in a jumpsuit expose his dick?” Complainant stated the UPS1 Assistant Warden stood up and “gyrated his hips back and forth and staff began to laugh, and she heard the word “dick” being said repeatedly, specifically by the Special Investigative Agent (SIA) who was present during the meeting. Complainant stated that at one point, the UPS1 Assistant Warden raised his hands and looked down at his groin and said “duck, duck, duck” which Complainant affirmed was a reference to oral sex. Complainant argued that the UPS1 Assistant Warden’s actions were retaliatory and sexual. Complainant noted that the it was unnecessary for the UPS1 Assistant Warden to ask why the inmate was in SHU because the UPS1 Assistant Warden was already aware that the inmate had previously exposed himself to CW1 as they had SHU meetings about this inmate ever since the inmate arrived at the SHU. Complainant further noted that the UPS1 Assistant Warden’s timing for asking this question occurred soon after the civil action lawsuit, which Complainant was a participant, had settled. CW1 testified that the UPS1 Assistant Warden corrected her for her use of language and CW1 admitted that she apologized for her actions. CW1 stated that she perceived the laughing as “people reacting in a kind silly, immature way to something that [she] had said.” CW1 noted that she was not offended by the UPS1 Assistant Warden’s actions and she was more so focused on herself and the language she used than how other employees were responding to the events that occurred. 2021003303 8 The record reflects that S1 conducted an internal investigation into the matter that was investigated by the OIA. Although the UPS1 Assistant Warden denied gyrating his hips or saying “duck, duck, duck,” the investigative report contains witness testimony both supporting and disputing the UPS1 Assistant Warden’s assertions. A copy of the investigative report determined that there was insufficient evidence to sustain allegations of Unprofessional Conduct of a Sexual Nature against the UPS1 Assistant Warden. However, there was sufficient evidence to sustain the allegations of Conduct Unbecoming a Management Official against UPS1 Assistant Warden. The investigative report further found that there was insufficient evidence to support that SIA made inappropriate comments or jokes regarding the word “dick,” and consequently, there was no finding that the SIA committed Unprofessional Conduct of a Sexual Nature. Although Complainant asserts that UPSI Assistant Warden’s actions were retaliatory for her participation in the class action, the record does not support this allegation. The record indicates that Complainant’s participation in the civil action was known. Here, Complainant alleged that the UPS1 Assistant Warden told her that he had heard that she was a “filer.” However, the UPS1 Assistant Warden denied ever making this comment. Consequently, there is no other evidence to support that the UPS1 Assistant Warden’s actions were retaliatory. We find that considering these allegations, even if true, Complainant has not presented sufficient credible evidence demonstrating that considerations of her sex or retaliatory animus motivated management’s actions toward Complainant. Here, the record indicates that in many instances Complainant disputed management’s decisions on work assignments, her ability to participate on operational reviews and follow-up reports. These incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Additionally, the record supports that UPS1 Assistant Warden called Complainant the “email queen” because Complainant had previously used that term to identify herself. Moreover, the record supports that the Agency investigated events involved during the SHU meeting. The results of the investigation found that there was insufficient evidence that the UPS1 Assistant Warden’s actions or the SIA’s actions were of a sexual nature. Rather, the actions were unprofessional. Lastly, aside from Complainant’s testimony there is no other evidence to support that the Assistant Warden’s actions were also retaliatory. Consequently, there is simply no evidence that the disputed actions were motivated in any way by Complainant’s sex and reprisal for prior protected EEO activity, and therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 2021003303 9 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). 2021003303 10 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 September 28, 2022 Date