Alma F.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 4, 2016

0120143183 (E.E.O.C. Nov. 4, 2016)

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

Alma F.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120143183
Hearing No. 570-2013-00935X
Agency No. P201201139

DECISION

Complainant filed an appeal from the Agency’s August 14, 2014, final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant work as the Chief, Office of
Medical Designations and Transportation (OMDT), GS-14, Health Services Division (HSD)
located in Washington, DC.2 On December 13, 2012, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race (Asian), national origin
(Filipino), and in reprisal for prior EEO activity when: (1) in January and April 2012, her
supervisor (S1) denied her request for assistance; (2) in June 2012, Care-3 medical re-
designations were assigned to her office; (3) on July 5, 2012, S1 informed the acting chief that
organ transplant issues were within the purview of OMDT; (4) on August 15, 2012, her request
to have retiring employee, C1, travel to Texas to provide training was denied; (5) her August 21,

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 In 2011, Complainant's offices were moved to the Designations and Sentence Computation
Center (DSCC) in Grand Prairie, Texas. Complainant states that she teleworks from her home
in Grand Prairie, Texas.
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2012, request to re-assign clinical reviews of the 770's (re-designations) to the Utilization
Review Nurse was not granted; and (6) between July 27, 2012, and August 22, 2012, her
subordinate employee's participation in the CD-HSA conference was cancelled. 3

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 U.S. Equal
Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ).
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to
the case granted the Agency’s May 29, 2014, motion for a decision without a hearing and
issued a decision without a hearing on July 3, 2014. The Agency subsequently issued a final
order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

UNDISPUTED FACTS

Complainant oversees the operation of medical designations and transportation of all Federal
inmates in the Bureau of Prisons (BOP). She is also responsible for overseeing medical
designations and transportation for parole violators and forensic study cases. Complainant's
immediate supervisor (S1) is the BOP’s Chief of Health Programs. He is also assigned to the
BOP's Health Services Division. His office is located in Washington, D.C.

Between January 11, 2012 and January 19, 2012, Complainant requested assistance to aid her
office in processing a backlog of initial medical designations. On January 24, 2012, S1
responded to these requests by assigning a staff member to assist with initial designations one
to two days per week. Although Complainant requested additional staff be allowed to assist,
such staff was not provided. Additional assistance was provided for two different weeks in
April and May 2012. In April 2012, a meeting was scheduled via teleconference to discuss the
backlog in initial designations. Although there appears to have been some difficulty initially
scheduling this meeting, documentation indicates that the meeting did take place via
teleconference in early May, 2012. Although every request for assistance made by
Complainant was not granted in the manner or timeframe she preferred, she was provided
assistance. Additionally, senior BOP managers in the Health Services Division worked to add
positions to the OMDT branch and to fill vacancies, even during times when vacancies in other
branches were not able to be filled in order to ensure sufficient resources were available to
assist with OMDT's backlog of initial designations.

In June 2012, the responsibility for the review and designation of Care Level 3 transfer
requests was assigned to OMDT. This assignment resulted from the retirement of another
staff member who had been handling Care Level 3 re-designations. Although Complainant

3 We note that the Agency dismissed Claim 1 for untimely EEO contact. However, the record
was, nevertheless, developed with respect to this issue and the AJ addressed this claim in his
decision. We have also considered the merits of this claim in our decision. Accordingly, we
decline to address the procedural dismissal.
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may not have desired to take on this extra responsibility, the review and designation of Care
Level 3 transfer requests is within the responsibilities of the OMDT. Complainant's position
description specifically indicates, "OMDT is responsible for the medical classification and
initial designation and re-designation of Care 3 and Care 4 Level inmates." In addition, prior
to this reassignment being made, there was considerable discussion between Complainant and
S1 regarding Care Level 3 re-designations. During all of these discussions, the only concern
raised by Complainant was that she would need an additional staff member to handle Care
Level 3 re-designations if her office was going to handle them. A new medical designator was
hired specifically to handle Care Level 3 re-designations beginning July 2, 2012.

On June 5, 2012, Complainant spoke telephonically with an Assistant United States Attorney
AUSDA from the Southern District of Florida, regarding the upcoming sentencing of a
defendant in an ongoing criminal case. The defendant was awaiting a liver and kidney
transplant and was receiving dialysis treatment. During that conversation, and in a subsequent
follow-up email, AUSDA requested a letter, "from an appropriate BOP official" affirming
several statements as to the BOP’s ability to accommodate the defendant's need for dialysis
treatment. This letter was needed in time for the defendant's sentencing on July 16, 2012.
That e-mail was not received by Complainant due to an inadvertent mistyping of her email
address. It was re-sent to the correct email address on June 14, 2012. Complainant provided
no response to this e-mail. On June 26, 2012, Complainant received a second e-mail regarding
the same criminal defendant, and again requesting the information indicated in the June 5,
2012, e-mail. Complainant again provided no response to this email. As a result, on July 3,
2012, another request was sent by AUSDA. Due to the fact that Complainant was out of the
office at that time, the e-mail was sent to Complainant's subordinate employee (C2). C2
discussed the request with S1 during a regularly scheduled meeting. After discussing it
telephonically, S1 sent C2 an email, in which he indicated that Complainant was an appropriate
BOP official to address these issues, inasmuch as they relate to designation within the BOP and
the BOP’s ability to manage care. S1 also further provided guidance to C2 relating to the
substantive content of the response. C2 agreed to draft the response, indicating, "[t]his is all
new territory for me, so thanks for the vote of confidence." On August 2, 2012, Complainant
provided the requested information to AUSDA. At no time between the original inquiry on
June 5, 2012, and August 2, 2012, when she ultimately provided the response, did
Complainant object to OMDT responding to this inquiry.

Later that day, a follow-up question was received from the United States Attorney's Office.
Complainant consulted with another BOP Health Services employee (C3). At that time, she
did not indicate OMDT should not respond, but merely asked for assistance determining the
best manner in which to proceed. It was C3 who suggested that this second inquiry should be
forwarded to S1 for response or further guidance. There is no further indication as to whether
a response was provided to this second inquiry, or by whom. Although Complainant may not
have desired to have her office assigned to respond to inquiries of this nature from an Assistant
United States Attorney, her position description reflects that she "serves as the BOP's main
liaison with other Department of Justice (DOJ) agencies (e.g., U.S. District Courts, U.S.
Attorney's Offices, U.S. Marshal's Service (USMS), etc.) concerning matters of managing
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health care needs through the designation and transportation process." As such, the chief of
OMDT (i.e., Complainant) was an appropriate individual to address inquiries from an
Assistant United States Attorney relating to the BOP's ability to manage care and designation
with the BOP.

Until her September 2012, retirement, C1 was a Central Office employee responsible for
coordinating transfers of inmates for medical reasons. Prior to C1’s retirement, Complainant
requested to have C1 travel to Texas to provide training for her staff. S1 supported and
approved the request for C1 to provide training in Texas. He also commended Complainant
for her initiative and foresight with respect to offering this training to her staff. It appears this
training was cancelled because C1 did not wish to travel to Texas, or was otherwise
unavailable to travel. S1 did not deny this training or make any changes to it. He was
informed of the change after C1 cancelled her travel. Ultimately, the training took place by
sending a staff member from OMDT to the Central Office (Washington, DC) to train with C1.

Although the timing is unclear, at some point prior to August 2012, clinical reviews of Care
Level 4 medical transfer requests (770s) were assigned from the Utilization Review Nurse
(URN), who previously handled this task, to OMDT. On or around August 21, 2012, for the
first time, Complainant requested that clinical review of 770s be reassigned back to the URN.
The request to transfer the review of 770s back to the URN was approved by S1. Within
several weeks of this request (late September or early October 2012), responsibility for the
review of 770s was transferred back to the URN.

Every two years, the BOP sponsors a CD-HSA conference, which is generally attended by the
institution Clinical Directors (CD) and Health Services Administrators (HSA) nationally. The
CD-HSA conference was scheduled for late August 2012. The only other individuals who
typically attend these conferences are resource staff who have specific responsibilities related
to the conference, or who are making presentations. No OMDT staff members were identified
as resource staffer scheduled to make presentations at the conference. Historically, OMDT
staff had not attended this conference, and no slots were designated for OMDT on this
occasion. On July 27, 2012, for the first time, Complainant spoke with her supervisor about
the conference and requested that C2 attend in order to participate in a break out session
relating to 770s. Complainant never spoke with her supervisor about attending the conference
herself. S1 found this last minute request perplexing, particularly since no breakout session
relating to 770s had been scheduled as part of the conference. Despite the late timing of the
request, S1 noted there were some spaces available, and supported Complainant's request for
C2 to attend the conference. As the conference approached, however, the backlog in
designations grew more acute. At that time, representatives from the United States Marshal's
Service contacted the BOP to discuss their serious concerns relating to the designations
backlog. The need to address this critical operational concern involving a potential life safety
issue for inmates was determined to be a higher priority than OMDT's elective participation in
the conference. As a result, OMDT's participation in the conference was cancelled by the
Assistant Director for Health Services Division. The decision to cancel OMDT's elective
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participation in the conference was based on the need to work through the backlog of
designations.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a
reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

We agree with the AJ in concluding that the Agency's actions do not amount to a pattern and
practice of harassment and discrimination because the alleged adverse employment actions
were not sufficiently offensive to alter the conditions of her employment. Additionally,
although Complainant may have found the decisions made by her supervisor to be offensive
and disrespectful, she has not presented evidence establishing the surrounding events to be
sufficiently severe, physically threatening or humiliating. Further, Complainant has not
provided evidence, beyond mere personal belief, that any of the decisions were motivated by
her race, national origin or in reprisal for her previous EEO activity.4

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 order which adopts the AJ’s decision
in support of the Agency.5

4 We note that Complainant’s prior EEO activity took place over six months before the events
alleged herein.
5 We also note that on appeal Complainant produced documentary evidence appearing to show
that various individuals assisted with OMDT’s backlog several years prior to the events at issue
herein. We do not find this information necessarily contradictory to S1’s explanation (i.e., that
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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”

he did not want such individuals to assist Complainant given their inexperience) due to the
large gap in time in usage of such individuals and due to the totality of the evidence herein.
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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

November 4, 2016
Date