Sandra N.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181574 (E.E.O.C. Sep. 4, 2019)

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

Sandra N.,1
Complainant,

v.

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

Appeal No. 0120181574

Agency No. BOP-2016-0198

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 7, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Religious Services
Assistant (RSA), GS-0303-07, at the Agency’s federal correctional institution ("FCI
Cumberland") in Cumberland, Maryland. Complainant had worked as an RSA in the Religious
Services Department (RSD) at FCI Cumberland for approximately three years during the events
giving rise to her complaint.

As a member of the RSD, Complainant worked directly with two staff members: her supervisor,
Supervisory Chaplain, and a coworker, Staff Chaplain. The Supervisory Chaplain started
working at FCI Cumberland in his position in March 2015.

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.
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On or about October 29, 2015, Supervisory Chaplain was reassigned to the Agency’s Federal
Prison Camp (FPC), which is separate from the institution, by Agency management officials in
order to minimize his interaction with staff, inmates, volunteers, and contractors due to his
disruptive and abrasive behavior. The Warden at FCI Cumberland stated there was a concern of
inmate violence towards Supervisory Chaplain and, from October 2015 on, he had to seek prior
approval before entering FCI Cumberland.

On March 3, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her
to a hostile work environment based on her sex (female) and religion (Protestant) when starting
in March 2015 and continuing thereafter, the Supervisory Chaplain allegedly modified her
regular duties to a restricted position; controlled her movement and speech; directed her to stay
in the office; monitored her phone use; stood over her while she used her computer; and did not
allow her to converse with staff and/or inmates freely.

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). Ultimately, 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 her to discrimination as alleged. Complainant filed the instant
appeal.

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”).

In the instant case, the Agency found Complainant failed to establish she was subjected to a
hostile work environment based on her protected status. To establish a claim of harassment, a
complainant must show that: (1) they belong to a statutorily protected class; (2) they were
subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on their statutorily protected class;
(4) the harassment affected a term or condition of 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 to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

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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). Thus, not all claims of harassment are actionable. 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).

Here, we concur with the Agency’s finding that the evidence establishes she was not subjected to
harassment as alleged. We further find assuming, arguendo, Complainant established she was
subjected to harassment, Complainant failed to produce any evidence that actions taken by the
Agency were based on her protected class. Here, the record establishes prior to Complainant’s
first allegations against Supervisory Chaplain, the Agency had already moved him to another
facility due to his behavior with inmates. Complainant supports this claim that he was moved due
to inmate complaints and, once moved, she felt comfortable reporting his behavior to Agency
management. Upon receiving her complaint, the Agency issued a Cease and Desist memorandum
to Supervisory Chaplain limiting his communications with Complainant, cease any
unprofessional behavior, and to not enter FCI Cumberland without prior approval from the
Assistant Warden. Supervisory Chaplain’s behavior was reported to be abrasive and
unprofessional towards volunteers, inmates, staff members, Staff Chaplain, and Complainant.
Those who reported his unacceptable behavior were outside of Complainant’s protected class.
Agency management stated they received complaints regarding Supervisory Chaplain’s behavior
from different religious volunteer groups, staff members, inmates of different religious
backgrounds, and Complainant’s male coworker, Staff Chaplain. Supervisory Chaplain was
moved to FPC in part due to concerns over inmate violence against him.

Additionally, Staff Chaplain, who worked in the same office as Complainant and Supervisory
Chaplain prior to his transfer, stated he did not observe Supervisory Chaplin restricting
Complainant’s phone use, movements in the institution, and interactions with inmates. While
Staff Chaplain did corroborate her allegations that her movements were restricted, he stated his
movements were also restricted and scrutinized by the Supervisory Chaplain. He noted the
Supervisory Chaplain had several relational struggles during this period with different staff
members. He noted that due to the frequency and the close proximity of Complainant's work
space, it could be perceived as being less favorable treatment toward Complainant, even though
others were also treated in a similar manner.

Supervisory Chaplain admitted he did monitor whereabouts of his staff or control inmate
interactions but argued that these supervisory tasks were not based on Complainant’s protected
class, rather safety and security concerns when working with inmates in isolated settings. Staff
Chaplain stated Supervisory Chaplain did request Complainant take notes, save emails and show
him things on her computer while standing over her on a few occasions as well as noted
Supervisory Chaplain would sit on the corner of her desk in the common area almost daily to
converse with himself and Complainant. Regarding Complainant’s claim about a change of
duties, we find that Complainant was asked by the Supervisory Chaplain to do more clerical (and
less non-clerical duties) at times.
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The clerical duties included the taking of notes and some of the non-clerical duties were at times
restricted because of security concerns set forth by the Supervisory Chaplain. We also find that
these changes all began when the Supervisory Chaplain started his position and that it is natural
that a new boss will have his or her own method of running an office. We do not find these
allegations severe or persuasive enough to constitute a hostile work environment. Moreover,
Complainant failed to show that any of the incidents were motivated by her sex or religion.

Additionally, Complainant failed to establish evidence indicating that other Agency employees,
similarly situated to Complainant and of a different protected status, were treated any differently
at the time. Complainant did allege Supervisory Chaplain only sat on her desk, not Staff
Chaplain. Supervisory Chaplain stated her desk was in the common area between the three RSD
members and they would use this common space to converse. We do not find Complainant’s
allegation sufficient to establish a pretext for discrimination. Accordingly, we find no reason to
disturb the Agency’s decision finding no harassment as alleged.

Looking at the complaint as one complaint of harassment, we find that the alleged conduct did
not amount to a hostile work environment and we find no evidence that the alleged harassment
was motivated by discrimination.

CONCLUSION

Accordingly, this Commission AFFIRMS the Agency’s final decision finding no discrimination.

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.
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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. 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.
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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 4, 2019
Date