0120100532
08-17-2011
Rory L. Sellers, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Rory L. Sellers,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120100532
Agency No. P-2008-0428
DECISION
On November 14, 2009, Complainant filed an appeal from the Agency's October 15, 2009, final decision 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). 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 Senior Correctional Officer at the Agency's Federal Correctional Institution in Fort Worth, Texas.
Complainant filed an EEO complaint dated June 10, 2008, alleging that the Agency discriminated against him on the basis of race (African-American) and in reprisal for prior protected EEO activity when, from July 21, 2007, to April 1, 2008, he experienced an ongoing pattern of hostile work environment to include denial of leave, denial of union representation, being verbally reprimanded by management, and being issued an eight-day suspension.
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 EEOC Administrative Judge (AJ). The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In its decision, the Agency dismissed Complainant's claim that he was denied union representation on October 21, 2007, pursuant to 29 C.F.R. � 1614.107(a)(4), noting that Complainant had filed a union grievance on the same matter on November 23, 2007.
Additionally, the Agency noted that Complainant initiated EEO Counselor contact in the present matter on April 28, 2008. The Agency dismissed Complainant's claims that he was denied annual leave on July 21, 2007, and subjected to a verbal reprimand on October 25, 2007, pursuant to 29 C.F.R. � 11614.107(a)(2), on the grounds that they were discrete incidents of discrimination which were not timely raised with an EEO Counselor.
With regard to the suspension, the Agency noted that in his affidavit Complainant stated that he did not believe the suspension was based on his race, but rather, was taken in reprisal for his prior EEO activity. The Agency stated that, assuming Complainant established a prima facie case of retaliation, it provided legitimate, nondiscriminatory reasons for suspending Complainant for eight days. The Agency noted that on January 7, 2008, the Associate Warden proposed to suspend Complainant for 14 days for "Unprofessional Conduct." The Associate Warden explained that an inmate had asked Complainant why he was staring and Complainant responded, "Because you're a bitch." The Associate Warden explained that two officers witnessed the incident. The Agency stated that Complainant provided a verbal response to the proposed suspension to the Warden, admitting that he was wrong to use profanity with the inmate and arguing that the 14-day suspension was too harsh a punishment. The Warden suspended Complainant for eight days.
The Agency noted that in investigating the charge of "Unprofessional Conduct" against Complainant, Captain X interviewed several officers who stated they witnessed Complainant making the offensive remark to the inmate. The Agency explained that Complainant was suspended previously for seven days from October 30, 2006, through November 5, 2006, for "Failure to Follow Policy." The Warden stated that under the progressive discipline procedures, and because Complainant had been suspended in October 2006, she had to give Complainant a suspension that was longer than the previous suspension. The Agency stated that according to its Standard Schedule for Disciplinary Offenses and Penalties, a second offense of "Disrespectful Conduct, use of insulting, abusive or obscene language to or about others," warrants a penalty ranging from a fourteen-day suspension to removal from employment. The Agency stated that its policies support the Warden's decision to suspend Complainant for one day longer than his previous suspension. The Agency found Complainant failed to show that its reasons for suspending Complainant were a pretext for discrimination.
On appeal, Complainant states the Agency setting is a prison environment and the use of foul/profane language is commonplace and employees are not usually disciplined for it. Complainant states he was not the first officer to ever use profane language; however, he claims because he had an ongoing EEO complaint, he was issued an eight-day suspension for his first infraction of this nature. With regard to the Agency's statement that it suspended him for eight days because he had a previous disciplinary action, he states that his prior disciplinary action was not related to nor involved the subsequent offense he was being charged with. Thus, he argues, the Agency should not have used his prior discipline in determining what discipline to give him in this matter.
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 Chap. 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").
At the outset, we note that Complainant states he is only appealing the Agency's decision regarding the issuance of the suspension. Thus, we limit our decision to addressing the suspension and will not address the Agency's dismissal of the claims concerning the denial of leave, the denial of union representation, and the verbal reprimand. Moreover, we note that Complainant does not contest the Agency's reliance on his statement in his affidavit that he is claiming the suspension was not based on race, but rather, on retaliation. Thus, we find the Agency properly analyzed Complainant's claim as alleging that he was suspended in retaliation for his prior protected EEO activity.
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, EEOC Request No. 05950842; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Upon review, we find the Agency provided legitimate, non-discriminatory reasons for issuing Complainant an eight-day suspension. The Agency noted that Complainant was charged with "Unprofessional Conduct" for using profanity toward an inmate. The record reveals the Agency conducted an investigation surrounding the incident and two officers confirmed that Complainant made the statement. We note that, on appeal, Complainant does not deny making the statement to the inmate. Although Complainant generally states that other officers used profane language, he does not identify any specific officer who used profanity with inmates under similar circumstances. The record shows that Complainant previously received a seven-day suspension; the Warden explained that, as a result of its progressive disciplinary policy, she was required to suspend him for more than seven days this time. Complainant does not deny that he was previously suspended for seven days; however, he argues that because the conduct in the first suspension was different from the conduct in the second suspension, the first suspension should not have been considered during the issuance of the second suspension. We note that even if Complainant is correct in his assertion that the Agency improperly relied on the first suspension, he failed to show that the Agency's actions were based on discriminatory animus. In the present case, we find Complainant failed to show by a preponderance of the evidence that he was subjected to discrimination as alleged.
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 (Nov. 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
8/17/11
__________________
Date
2
01-2010-0532
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100532