0120101238
08-23-2011
Stefanie L. Powers, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Stefanie L. Powers,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120101238
Agency No. P-2006-0653
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s October 22, 2009 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 was employed as a Senior
Correctional Officer at the Agency’s Federal Medical Center (FMC)
Devens in Ayer, Massachusetts.
On October 20, 2006, Complainant filed the instant formal complaint.
Therein, Complainant claimed that the Agency discriminated against
her on the bases of sex (female) and in reprisal for prior protected
activity when:
1. from May 31, 2006 through the present, she was subjected to sexual
harassment in the form of unwarranted rumors and offensive comments
pertaining to sexual relationship between herself and an inmate; and
2. she was denied official time to meet with an EEO representative.
After the investigation of the instant formal complaint, the Agency
provided Complainant with a copy of the report of investigation and notice
of the right to request a hearing before an EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a
final decision on October 22, 2009, pursuant to 29 C.F.R. § 1614.110(b).
In its October 22, 2009 final decision, the Agency found no
discrimination. Without addressing the prima facie case analysis,
the Agency found that Agency management articulated legitimate,
nondiscriminatory reasons for its actions which Complainant failed to
show were a pretext for discrimination based on sex and retaliation.
During the Agency’s investigation into the claim, Complainant asserted
she was one of six or seven staff members out of approximately 200
officers at FMC Devins. Complainant stated that in May 2006 she
learned from an inmate that her supervisors were investigating her on
the suspicion of providing contraband cigarettes and sexual favors
to inmates. She said the management officials were acting on a tip
from an inmate, who they promised preferential treatment and threatened
him with disciplinary action if he did not “say those things about
[her] that weren’t true.” Complainant alleged that rumors of
the investigation quickly spread throughout the facility to both her
coworkers and the inmates, causing her considerable distress, resulting
in her use of sick leave. She stated management would not give her
information about the investigation and acted negatively towards her,
and she feared for her safety from inmates.
Two other correctional officers provided statements that Inmate 1 had
told them that he was being pressured during the investigation to confirm
the allegations against Complainant.
With regard to her retaliation claim, Complainant conceded that she had
never participated in any EEO activity prior to this matter. However, she
believed that some of the negative reaction she received from management
and the denial of her request to meet with an EEO representative was in
retaliation for her protests over being accused of providing contraband
and sexual favors to inmates.
In response to Complainant’s allegations, the former Warden (W1)
stated that sometime in May 2006, a named inmate (Inmate 1) approached
a named Captain (C1) stating that Complainant and her boyfriend, also
a Correctional Officer, “were selling cigarettes to inmates and that
[Complainant] was getting sexual favors [from] an inmate.” W1 stated
that he immediately directed C1 and a Special Investigative Agent “to
go to talk to the inmate who was in an outside hospital for treatment
and the inmate denied everything.” W1 further stated that during the
inquiry, Inmate 1 also stated that four other inmates were involved.
W1 stated, “when I learned of this, I had these inmates locked up at
the special housing unit. We questioned them and [they] did not mention
[Complainant] or any staff names during the investigation. I had two of
these inmates transferred to another institution based on the seriousness
of the allegations…at the same time I referred the case to the Central
Office, based on the seriousness of the case and the case was accepted by
[named Agency official], and I was out of the case after that. The case
investigation was still ongoing when I retired in November 2006 and I
never saw a report or heard the outcome.”
W1 stated that right after he learned of the allegations involving
Complainant and CO, both Complainant and CO “took sick leave for about
a week. I don’t recall the exact dates, but when they got back, they
made an appointment with me and asked if they were under investigation.”
W1 stated that on May 31, 2006, he met with Complainant, CO and a
union representative, and told them that “according to the procedure
I couldn’t give them that information. Within a day, [Complainant]
came back and said there were a lot of rumors round the compound that
she was giving sexual favors to an inmate. I asked her who the staff
members were and she refused to give me any names.”
C1 stated that pursuant to W1’s instructions, he interviewed Inmate 1
regarding the charges of staff bringing in cigarettes and “he alluded to
the fact that possibly there was a staff member who might be having sex
with inmates. One thing that I’m very careful, when I do questioning
of inmates pertaining to allegations is that I never, never throw out a
staff member’s name to the inmate and [instead] make them tell me who
they’re talking about.” C1 stated that when he questioned Inmate 1,
the inmate mentioned Complainant’s name. C1 further stated that he told
Inmate 1 if he provided information “that is correct and verifiable
. . . that could be good for you, it certainly wouldn’t hurt your
case . . . if you went in front of a parole commission or something like
that, but I never promise - - - I’m just not in a position to do that.
I don’t make the calls when it comes to, you know, if you provide it
you’ll get this. I can’t do that.”
C1 stated that when these allegations arose in May 2006, management
“locked up approximately four inmates that we thought were involved in
not only bringing cigarettes into the institution, but possibly knowing
about a staff member having sex with inmates or knowing more details
about the cigarettes coming into the institution. After we locked
up those four inmates, [Complainant] and [CO] just went berserk. They
wanted to know if they were under investigation, they went up to the
Warden and questioned the Warden whether they were under investigation,
and nobody said anything to them or about them. All we did was lock up
four inmates, and they panicked.”
The Special Investigative Agent (SIA), assigned to the investigation,
stated that when he met with Inmate 1 “there were no special allowances
made for anything.” SIA further stated that Inmate 1’s information
“was pretty much running around in circles.” SIA stated that Inmate
1 did not provide any specific information concerning Complainant.
Complainant’s supervisor (S1) stated that during May 2006, he was the
Special Investigative Supervisor “which is a duty that is assigned to
a Lieutenant in Correctional Services. During that time, [Complainant]
came forward with a memorandum saying that [an] inmate had come up
to her and stated certain things to her pertaining to her and another
inmate - - that was going around the institution.” S1 further stated
that after he initiated the investigation, management interviewed the
inmates that Complainant “reported from her memorandum, they had to
sign the affidavit.”
S1 stated that in regard to Complainant’s allegation that he and perhaps
other Agency officials interviewed Inmate 1 and offered him special
incentives in return for providing negative information specifically
about her, was not true.
With respect to Complainant’s assertion that her co-workers avoided her
and did not speak to her since the incident, W1 denied it. Specifically,
W1 stated, “actually, after this incident occurred, I would say good
morning to [Complainant] or [CO] and they would not speak back to me.
I did not change my approach to her in any way.”
C1 denied subjecting Complainant to a hostile work environment or
witnessing any staff members mistreating her. Specifically, C1 stated,
“No, in fact I just see the opposite. I see [Complainant] out here
laughing with fellow officers, out here talking with fellow officers,
and I’m pretty sure that they even do things in their spare time,
in their off time, with other officers, so if that’s occurring, it
hasn’t been brought to my attention.”
Regarding claim 2, W1 stated that Complainant never asked him for official
time to meet with an EEO representative. W1 stated that during the
relevant time, the EEO representative had been activated for military
duty and “. . . we gave [Complainant] several phone numbers for OIG,
the Central Office and the EEO office. I am not aware of her being
denied to meet with her EEO rep.”
S1 stated “I never denied [Complainant] any official time to be with
any EEO representative.”
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred finding no
discrimination. Complainant argues, “I was subjected to sexual
harassment in the form of unwelcome verbal conduct involving myself
and an inmate. I have never touched this inmate, never mind engage
in sexual relations with him. The harassment I complained of was of
co[u]rse based on gender.” Complainant further argues that Agency
management “will routinely say they are not wrong. They will not
admit to doing things in a wrong manner.”
ANALYSIS AND FINDINGS
Harassment Claim
Harassment of an employee that would not occur but for the employee’s
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently severe or pervasive. Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
It is also well-settled that harassment based on an individual’s prior
EEO activity is actionable. Roberts v. Department of Transportation,
EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group
of isolated incidents will generally not be regarded as discriminatory
harassment unless the conduct is severe. Walker v. Ford Motor Co.,
684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is
sufficiently severe to trigger a violation of Title VII must be determined
by looking at all of the circumstances, including the frequency of the
discriminatory conduct, its severity, whether it is physically threatening
or humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee’s work performance. The harassers’
conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim’s circumstances. Harris v. Forklift Systems,
Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6.
In the instant case, we agree with the Agency that Complainant has not
established, by a preponderance of the evidence, that she was subjected
to sexual harassment for which the Agency was liable. First, it is
undisputed an inmate, rather than management officials, initiated the
accusations that Complainant was distributing contraband cigarettes and
engaging in sexual misconduct. Under the circumstances presented here,
it was appropriate for management officials, charged with the security of
the facility, to initiate an internal investigation into the inmate’s
accusations. While Complainant alleges that inmates were enticed and/or
intimidated into making statements against her, there is no evidence that
what occurred was anything other than legitimate interrogation of inmates.
There is no evidence that there was ever a finding against Complainant
as a result of the investigation, or that any adverse employment action
was taken against her as a result.
While under certain circumstances, the Agency may be held vicariously
liable for the acts of non-employees, such liability only occurs
once management knows of the harassment and fails to take appropriate
corrective action. In this case, the evidence shows that Complainant
met with W1 concerning the rumors involving her, but did not cooperate
with management’s efforts to discipline correctional officers who were
spreading the rumors since she refused to name any responsible officers.
On the other hand, Agency management acted to discipline the inmates
who were circulating the rumors by separating them in a special housing
unit and transferring the inmate said to have had sexual contact with
Complainant to another facility. Complainant asserts on appeal that the
inmate who first reported her still remains at her facility and continues
to tell other inmates about the investigation.
In these circumstances, the record supports a finding that the Agency
responded to Complainant’s harassment allegations in an immediate
and appropriate manner.
Official Time Claim
Regarding the claim that Complainant was subjected to unlawful retaliation
when she was denied official time to meet with a “representative,”
the weight of the evidence gathered during the investigation simply does
not support Complainant’s contention. Management witnesses concede that
Complainant’s initial request to meet with a specific individual for EEO
counseling was denied. The unrebutted statements of management witnesses
is that the denial occurred because that individual was no longer serving
as a counselor, and Complainant was provided with contact information
for the current EEO counselors. Moreover, the record indicates that
Complainant did, in fact, receive EEO counseling. On appeal, Complainant
now argues that she wanted to meet with the particular individual as
a representative before she went to counseling. However, beyond her
bare assertions, she has not proven she communicated this to management.
At best, it appears more likely than not that management misunderstood her
request as a desire to meet with the individual in his former capacity
as an EEO counselor. Under these circumstances, we do not find support
for Complainant’s claim of retaliatory animus.
CONCLUSION
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the Agency’s final decision because the
preponderance of the evidence of record does not establish that
discrimination occurred.
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 (November 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
August 23, 2011
__________________
Date
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0120101238
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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