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

Equal Employment Opportunity Commission

Mar 16, 2023

Appeal No. 2022002190 (E.E.O.C. Mar. 16, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otto P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2022002190 Hearing No. 550-2021-00057X Agency No. BOP-2020-0811 DECISION On March 16, 2022, 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 February 24, 2022, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Procurement and Property Specialist, 1101, GS-9 at the Agency’s Federal Correctional Institution in Dublin, California. On November 23, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), color (black), sex (male), disability, 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. 2022002190 2 1. In October 2019, the Warden showed an email to a staff member to intimidate and coerce the staff member to falsify information; 2. On October 31, 2019, Complainant’s supervisor threatened him in a meeting with regard to his previous participation in prior EEO activity; and 3. On November 5, 2019, a Threat Assessment Committee meeting concluded without interviewing the alleged person who made the threat against him; however, other witnesses were interviewed. 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. After both parties submitted motions in response to the AJ’s notice of proposed decision without a hearing, the AJ assigned to the case issued a decision without a hearing finding no discrimination on January 25, 2022. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The following Agency employees were involved in the foregoing claims: Complainant’s first- level supervisor (Supervisor-1); Complainant’s second-level supervisor at the time of the events (Supervisor-2); the warden of the facility (Warden); and Complainant’s coworker (Coworker-1). Regarding claim 1, Complainant sent an email to Coworker-1 a few days following a meeting they attended with Supervisor-1. In the email, Complainant asked if Supervisor-1 stated at the meeting, “leave slips for being 5 minutes or more late derived from an arbitration.” Coworker-1 responded, “I believe you are right.” Complainant contended that after Warden was informed of Coworker-1’s email, Warden showed Coworker-1 his (Coworker-1’s) response email to intimidate Coworker-1 to no longer assist with any potential dispute over Agency tardiness policy. Coworker-1 denied that Warden showed him the email. Warden denied showing Coworker-1 the email. Warden explained that the local union emailed Warden with the relevant email attached and courtesy copied Coworker-1 and Complainant. The record contains an email corroborating Warden’s explanation. Warden denied ever discussing any matters related to staff with Coworker-1. Regarding claim 2, Supervisor-2 called a meeting to try and resolve the issues between Complainant and Supervisor-1. Coworker-1 was present at the meeting at Complainant’s request “to make it [an] even two subordinates and two managers.” The Agency’s tardiness policy was one of the topics discussed. Complainant reported stating that Supervisor-1’s requiring the use of leave slips for late arrivals of less than seven minutes late was harassing. Complainant stated that Supervisor-1 stated in an angry tone that Complainant has available resources to take action and for protection. Complainant reported responding that Supervisor-1 also had people who could assist her and who would protect her as long as she stayed within policy. Complainant reported that Supervisor-1 stated, “she was going to start taking her own actions against me.” 2022002190 3 Complainant reported immediately taking this as a threat and fearing for his safety. Supervisor-2 and Coworker-1 reported understanding Supervisor-1’s statement as her telling Complainant that she would document and/or address his late arrivals. Regarding claim 3, on November 1, 2019, Complainant requested a threat assessment of what occurred during the meeting from the previous day. Complainant reported that the various members at the Agency refused to interview Supervisor-1 during the Threat Assessment Committee (TAC) meeting. Complainant, Coworker-1, and Supervisor-2 provided statements and responded to inquiries at the TAC. At the TAC meeting, Complainant stated, “I don’t know how to take the statement made by [Supervisor-1].” Supervisor-1 used sick leave on the day the TAC meeting occurred. Warden explained that the TAC determined that a threat did not exist based on the statements of Complainant and the witnesses; therefore, the TAC determined an interview of Supervisor-1 was unnecessary. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO- MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (4) the harassment affected a term or condition of 2022002190 4 employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. Regarding claim 1, the relevant email from Coworker-1 stated, “I believe you are right.” Complainant contends that Warden showed this email to Coworker-1 to intimidate Coworker-1. Assuming arguendo that this occurred, we do not find that Complainant was subjected to harassment in the form of unwelcome verbal or physical conduct. Complainant failed to establish discriminatory motive for the foregoing alleged conduct as well. Regarding claim 2, Complainant failed to explain how the remarks at issue were made “with regard to his previous participation in prior EEO activity.” On their face, the alleged remarks have no regard to Complainant’s previous participation in prior EEO activity. We find no evidence of any remark related to Complainant’s prior EEO activity. Regarding claim 3, the TAC meeting’s objective was “staff safety by determining if evidence of any act or attempted act of violence exists and curbing violence and threats of violence.” Supervisor-1 was not able to participate on the day of the TAC meeting due to her use of sick leave. The TAC determined that Supervisor-1’s statement was not needed because Complainant’s statement, Coworker-1’s statement, and Supervisor-2’s statement did not establish evidence to support that a threat was made. Complainant has not shown or even indicated how the statement in claim 2 or the Agency’s response (claim 3) to the statement was motivated by discrimination or retaliation. Furthermore, none of these claims together are sufficiently severe or pervasive so as to constitute a hostile work environment. The record does not contain evidence that similarly situated employees not in Complainant’s protected groups were treated differently under similar circumstances. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 2022002190 5 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). 2022002190 6 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 16, 2023 Date