Russell D.,1 Complainant,v.William Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181991 (E.E.O.C. Sep. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Russell D.,1
Complainant,

v.

William Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120181991

Agency No. P-2013-0406

DECISION

Complainant timely 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 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

ISSUE PRESENTED

Whether the Agency discriminated against Complainant based on his sex (male/caregiver
status)2 when it issued him a reprimand, denied his requests for sick leave and threatened him
and charged him Absent without Leave (AWOL).

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 Although federal EEO laws do not prohibit discrimination against caregivers per se, there are
circumstances in which discrimination against caregivers may constitute unlawful disparate
treatment. See Camden v. Dep't of Justice, EEOC Appeal No. 0120093506 (July 27, 2012).
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Heating Ventilation
and Air Conditioning Supervisor at the Agency’s Federal Correctional Institution in Berlin, New
Hampshire. Complainant’s normal shift was Monday through Friday, 7:30 a.m. to 4:00 p.m.
Report of Investigation (ROI) at pg. 131. Complainant reported to his first-line supervisor (S1)
(male, parent), and his second-line supervisor (S2) (male, parent).

Starting in February 2013, the entire staff was scheduled to undergo mandatory training. ROI at
pg. 106. Complainant, and other employees, were asked to temporarily change their schedules to
accommodate the training. ROI at pg. 116. The Agency needed coverage for the “Power House,”
which included some evening, morning, and day shifts. ROI at pg. 150. Complainant’s schedule
was changed February 3-27, 2013 and included some afternoon and evening shifts. ROI at pg.
48-50. On an unspecified date, Complainant stated that he met with the Warden (female, parent)
to try to adjust this schedule because he would not have appropriate childcare. Complainant
alleged that the Warden said that Complainant’s family “didn’t matter.” ROI at pgs. 85, 90.

On January 25, 2013, Complainant submitted a request for sick leave for the following dates:
February 3, February 8-10, February 14-16, and February 25-27, 2013, for a total of 80 hours.
Complainant noted that his leave request was pursuant to the Family Friendly Leave Act
(FFLA). ROI at pg. 188. Complainant stated that S1 requested medical documentation, which he
provided.3 ROI at pg. 94.

On or about February 5, 2013, S1 issued Complainant a memo informing him that his FFLA
request was not approved, and that it could not be approved until he provided satisfactory
documentation. S1 noted that an Office of Personnel Management policy states that for absences
in excess of 3 days, an employee must provide “administratively acceptable” documentation.4 S1
noted that if Complainant did not provide the documentation, he would need to report for duty or
the Agency would record him as AWOL. ROI at pgs. 189-190. S1 stated that the original
documentation was not administratively acceptable, and that Complainant never provided
additional documentation. ROI at pg. 131.

On February 8, 2013, Complainant stated that he called S1 to request sick leave due to anxiety,
and that S1 responded in a threatening manner that he would be charged AWOL. Complainant
was charged AWOL for February 8, and 9, 2013, when he did not report to work. Complainant
worked the remaining days for which he had initially requested leave. ROI at pgs. 92-93, 97.

3 The record does not contain a copy of this document. We remind the Agency of its
responsibility to produce a complete record in an EEO investigation.

4 5 C.F.R. § 630.403. ROI at pgs. 56-58.

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On May 1, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (male) and parental status (parent) when:

1. on February 6, 2013, he received a letter of reprimand for not providing medical
documentation for his leave request under the FFLA;

2. on February 8, 2013, he was denied leave and threatened;

3. on February 17, 2013, he was charged AWOL and not paid for 16 hours of work;
and

4. on March 3, 2013, he was charged with AWOL.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In
accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

As an initial matter, the Agency noted that claims based on parental status were not within the
purview of Title VII. The Agency determined that Complainant’s claim was brought pursuant to
Executive Order 11478, and its decision on this claim was final and could not be appealed.

The Agency did not discuss a prima facie case of sex discrimination, and determined that
management officials proffered legitimate, nondiscriminatory reasons for their actions.
Complainant’s schedule was temporarily changed to allow for mandatory training. S1 denied
Complainant’s request for 80 hours of FFLA sick leave because he did not provide supporting
documentation. Additionally, S1 charged Complainant with AWOL on February 8-9, 2013,
because he did not report to work and did not receive approval for leave.

The Agency then found that Complainant did not demonstrate that the reasons were pretext for
discrimination. Complainant alleged that female employees were granted FFLA leave, and that
the managers “stereotyped” that his childcare needs were not considered the same as a woman’s
childcare needs. However, the Agency stated that Complainant’s conclusory beliefs, without
specific evidence, were insufficient to establish pretext. The Agency further noted that there was
no evidence that female employees who failed to provide supporting medical documentation
were granted leave under the FFLA, and that other men were also granted leave for childcare
purposes. The Agency concluded that the record failed to demonstrate that Complainant was
subjected to disparate treatment based on his sex or parental status.

On May 22, 2015, Complainant, through his representative, appealed the Agency’s decision to
the Commission. On appeal, Complainant alleged that the Agency discriminated against him
because it changed the work schedules of similarly-situated female employees to accommodate
their family and child care issues.
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Complainant asserted that the Warden allowed the schedule change of a female comparator (C1),
while she stated to him, “I do not care about your family.” In support of his appeal, Complainant
provided an email from C1 stating that she was given permission to adjust her schedule due to
her mother’s illness for approximately seven months. Complainant also provided an email from
another female employee stating that her schedule was changed due to “school bus issues.” The
Agency submitted an opposition brief.

On August 15, 2017, the Commission issued an appellate decision ordering the Agency to
conduct a supplemental investigation because we deemed the investigation to be insufficient to
support a determination concerning Complainant’s sex discrimination claim.5 The Commission
found that Complainant’s request for sick leave on February 8, 2013, was a renewed request for
sick leave for a different reason, and that additional information was needed as to whether other
employees were charged AWOL for requesting and taking two days of sick leave. Further,
additional information was needed about whether comparative employees were asked to produce
documentation to substantiate the use of two days of sick leave, similar to Complainant’s use of
leave. The Commission ordered the Agency to produce evidence of comparative employees who:
(1) were charged AWOL for requesting and taking two days of sick leave; (2) were asked to
provide medical documentation for use of two days of sick leave; and (3) were charged AWOL
after an absence pursuant to a renewed leave request when a previous leave request was denied,
or whether they were allowed to take leave. Russel D. v Dep’t of Justice, EEOC Appeal No.
0120152026 (Aug. 15, 2017).

In accordance with our Order in EEOC Appeal No. 0120152026, the Agency conducted the
supplemental investigation and provided a copy of the supplemental ROI to Complainant on
November 21, 2017. The Agency also provided Complainant with his right to request a hearing
or a final agency decision. Complainant did not respond to the Agency’s supplemental ROI. This
appeal was docketed in order to address the Agency’s finding that it did not discriminate against
Complainant, as alleged, now that the appellate record is complete.

ANALYSIS AND FINDINGS

Standard of Review

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 (EEO MD-110), at Chap. 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

5 The Commission noted that, while Complainant alleged discrimination on the basis of parental
status, caregiver status was a more appropriate designation for his discrimination claim.
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir.
1976). For Complainant to prevail, he must first 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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978).

Complainant may establish a prima facie case of sex (male/caregiver status) discrimination by
providing evidence that: (1) he is a member of a protected class; (2) he suffered an adverse
employment action; and (3) either that similarly situated individuals outside his protected class
were treated differently, or other circumstances surrounding the adverse employment action give
rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Reeves v. Sanderson
Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.
2004) (internal quotation marks omitted).

Individuals who are caregivers to either children or the elderly may face sex-based disparate
treatment in the workplace in violation of Title VII. See Enforcement Guidance: Unlawful
Disparate Treatment of Workers with Caregiving Responsibilities, EEOC Notice No. 915.002, 8-
12 (May 23, 2007).

In this case, we find that Complainant has not established a prima facie case of sex
discrimination. For claim 1, Complainant alleged that S1 issued him a reprimand on February 6,
2013; however, the document clearly reads as a denial of his FFLA request, with instructions to
submit additional information, and is not a reprimand. We find that claim 1 should be more
appropriately considered as a denial of his FFLA sick leave request for 80 hours.

Complainant argued that C1 was granted FFLA leave and an alternative work schedule.6
However, we find that C1 is not an appropriate comparator because she is not similarly situated
to Complainant. To be considered “similarly situated,” all relevant aspects of the comparative
employee’s work situation must be identical or nearly identical, to that of Complainant,
including, but not limited to reporting to the same supervisor, performing the same job function,
and working the same schedule. See Cantu v. Dep't of Homeland Sec., EEOC Appeal No.
01A60528 (Jul. 14, 2006); Grappone v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001)
req. for recon. denied, EEOC Request No. 05A20020 (Dec. 28, 2002).

6 While Complainant argued that female employees were allowed to modify their work schedules
due to family or child care issues, we find that a denial of a change in work schedule was not one
of the accepted claims in the instant complaint.
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C1 is a Secretary in another department and is therefore not similarly-situated to Complainant.
Complainant also alleged that a male Plumber was granted FFLA leave. ROI at pgs. 87-88.
However, we note that the Plumber is not outside of Complainant’s claimed protected class.
Accordingly, we find that Complainant has not shown that he was treated differently as
compared to similarly-situated employees outside his protected class, nor presented any evidence
regarding the circumstances surrounding the denial of his request for FFLA leave that gives rise
to an inference of discrimination.

Regarding claim 2, we find that the record contains conflicting evidence about Complainant’s
allegation that S1 denied his sick leave request and threatened him. S1 stated that when
Complainant called him on February 8, 2013, he did not specify that he was sick, nor did he
request sick or annual leave. S1 stated that Complainant only said that he would not be reporting
to work. Additionally, S1 denied threatening Complainant and stated that he informed
Complainant that his options were to either come to work or be marked as AWOL if he did not
show up. ROI at pgs. 130, 132-133. There were no witnesses to their conversation. ROI at pg.
92. Complainant did not request a hearing before an EEOC Administrative Judge, and as a result
we do not have the benefit of an Administrative Judge’s credibility determinations of the
witnesses in this case. Complainant bears the burden to prove, by a preponderance of the
evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise,
Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal
No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false
statements where he withdrew his request for a hearing and credibility determinations were
unable to be made): Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23,
2012) (complainant failed to establish that his coworker made offensive comments in a “he said,
she said” situation where complainant requested a final decision and an Administrative Judge did
not make credibility determinations). Accordingly, we find that Complainant has not established
that S1 denied him leave and threatened him on February 8, 2013.

For claims 3 and 4, we find that Complainant was not charged AWOL on either February 17, or
March 3, 2013, and was only charged AWOL on February 8 and 9, 2013. ROI at pg. 86.
Additionally, Complainant did not show that there were similarly-situated employees outside of
his protected class who were treated more favorably. The record shows that no other employees
were (1) charged AWOL for requesting and taking two days of sick leave; or (2) charged AWOL
after an absence pursuant to a renewed leave request after a previous leave request was denied.
Supplemental ROI at pgs. 30-31, 43. Neither do we find other evidence of record from which a
discriminatory motive may be inferred.

Accordingly, we find that Complainant has not established a prima facie case of sex
discrimination and therefore, he has not shown that the Agency discriminated against him based
on his sex when it issued him a reprimand, denied his requests for sick leave and threatened him,
and charged him AWOL.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that the Agency
did not discriminate against Complainant based on his sex.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.
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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 30, 2019
Date