Celeste P.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 14, 2018

0120170125 (E.E.O.C. Feb. 14, 2018)

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

Celeste P.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120170125

Agency No. BOP-2013-00962

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 23, 2016, finding no discrimination
with regard to her 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq.
For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

In her complaint, filed on November 8, 2013, Complainant alleged discrimination based on race
(Black/African American), sex (female), age (over 40), disability, and in reprisal for prior EEO
activity when:

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 August 19, 2013, she was referred for an Office of Internal Affairs (OIA)
investigation for Failure to Pay Just Debts for staff housing back rent despite the
fact that management previously approved a salary offset for repayment of the
back rent.2

After completion of the investigation of the complaint, Complainant was notified of her right to
request a hearing. There is no evidence Complainant requested a hearing. The Agency issued its
final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its
action, which Complainant failed to rebut. On appeal, Complainant does not dispute the
Agency’s issuance of its final decision without a hearing.

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 (EEO MD-110), 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
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed by the
Agency as a Correctional Officer at the Metropolitan Correctional Center (MCC) in New York
City. She held that position since 2002. Since 2005, Complainant and her daughters lived in
Agency provided staff housing at Dayton Manor, Brooklyn, New York. Dayton Manor was an
apartment complex for the purpose of providing Agency employees assigned to either MCC New
York or MDC Brooklyn with affordable housing with rent typically paid by a payroll deduction,
as Complainant did. Management at Metropolitan Detention Center (MDC) Brooklyn had
oversight of the complex.

Complainant indicated that she was injured in a car accident in November 2011, and was unable
to work since then and was in a Leave Without Pay (LWOP) status until June 2012. Because of
her LWOP status, in December 2011, Complainant became unable to pay her rent through her
regular payroll deductions. Complainant claimed that on August 19, 2013, she first became
aware of being referred to OIA by an identified Special Investigative Agent (SIA) for Failure to
Pay Just Debts related to her back rent.

2 It is noted that although Complainant alleged discrimination based on parental status, the
Commission does not enforce that basis.
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Complainant’s Warden (W1) indicated that in March 2013, she received notice from an
employee in Dayton Manor of possible staff misconduct resulting from activities which had been
occurring at Complainant’s apartment since January 2013. The record indicates that security
guards and residents in Dayton Manor filed many complaints from 2011, through 2013,
concerning Complainant’s teenage daughters’ conduct in violation of the housing policy when
they were reported to be: smoking in the stairwell, the gym, and hallway; sleeping in the
hallway; allowing other teenagers to sleep in the stairwell; being on the roof with a friend; locked
in the gym bathroom with a teenage boy; being escorted out, along with two male non-Dayton
Manor residents, in handcuffs by New York City Police Officers; causing a fire alarm to go off;
and making loud noises around midnight hours causing neighbors to be unable to sleep.
Complainant does not dispute the foregoing.

W1 also indicated that she was also informed by an Agency Business Administrator that
Complainant’s rent was 196 days past due. According to the Agency’s policy, stated W1, if an
employee failed to pay rent for 90 days, the employee was typically referred to OIA for
investigation for Failure to Pay Just Debts even if a salary offset had been arranged, as
Complainant claimed she did. W1 stated that at the relevant time, she was informed by her
Associate Wardens that there were numerous attempts made to get Complainant to pay her rent
and she believed that the salary offset was invoked by the government and not initiated by
Complainant.

Based on the foregoing information, stated W1, she authorized the SIA to prepare a “Referral of
Incident” report. In the Referral of Incident, the SIA indicated that Complainant was being
charged Failure to Pay Just Debts and Failure to Follow Policy. Specifically, the SIA stated that
Complainant’s rent was over 90 days late with a balance of $8,375.50 as of December 16, 2012;
and an identified resident of Dayton Manor complained that since becoming a resident at Dayton
Manor on December 21, 2011, he filed numerous complaints against Complainant for
disturbances and disruptions but they had not stopped, but rather increased in frequency and
escalated in volume.

The record reflects that W1 signed the foregoing Referral of Incident on February 26, 2013, and
it was referred to OIA for an investigation. W1 indicated that although OIA’s investigation
sustained Complainant’s failure to pay just debts in December 2013, no disciplinary action was
taken against Complainant. Complainant does not dispute this. The record indicates that
Complainant continued to reside in her Dayton Manor apartment at the time of the complaint.

It is noted that we do not address in this decision whether Complainant is a qualified individual
with a disability. Furthermore, we note that Complainant has not claimed that she was denied a
reasonable accommodation and she has not claimed that she was required to perform her duties
beyond her medical restrictions. We find that Complainant failed to show that she was treated
less favorably than a similarly situated employee under similar circumstances or that the
Agency’s reason for its action was a pretext for discrimination. Based on the foregoing, we find
that Complainant has failed to show that the Agency’s action was motivated by discrimination as
she alleged.
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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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).

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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. 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

February 14, 2018
Date