Charles R.,1 Complainant,v.Matthew G. Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120172643 (E.E.O.C. Nov. 30, 2018)

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

Charles R.,1
Complainant,

v.

Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120172643

Agency No. BOP-2015-01365

DECISION

On July 13, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 5, 2017 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 worked as a Safety Compliance Specialist, GS-9, at the
Agency’s Federal Correctional Institution in Tallahassee, Florida (FCI Tallahassee).

On March 12, 2014, Complainant filed the instant formal complaint. Complainant claimed that
the Agency unlawfully retaliated against him in reprisal for prior EEO activity when:

on December 15, 2014, management denied his request for a temporary promotion.

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing.

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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Complainant, however, subsequently withdrew the hearing request. The Agency issued the
instant final decision on June 5, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no
discrimination.

The instant appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant worked as a Safety Specialist for the Agency since 2011. Complainant stated that
he was supervised by a Safety Manager, and his position and the Safety Manager position were
the only two positions within the Safety Department. Complainant stated that he functioned as
the acting Safety Manager when the former Safety Manager left the position on July 13, 2014,
until December 2, 2014, with the selection of the new Safety Manager. Complainant
acknowledged at that time he was never officially assigned to serve as acting Safety Manager
position, but attended Department Head meetings and assumed other duties because he was the
only employee in the Safety Department.

Complainant stated that on December 15, 2014, he approached management after the Safety
Manager position was filled. Complainant sought to receive a retroactive temporary promotion
for the time he filled in for the Safety Manager in an unofficial capacity.
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According to the Agency management, Complainant approached the Associate Warden initially
on November 6, 2014, not December 15, 2014, requesting a temporary promotion.

Complainant stated that he had filed a prior EEO complaint in 2011. Complainant acknowledged
that neither the Warden nor the Associate Warden were named as responsible management
officials in his prior EEO complaint. Complainant believed that he was denied the temporary
Safety Manager promotion because of his prior protected activity. Complainant acknowledged
that he did not apply for the permanent Safety Manager position after it became vacant in July
2014, because “it is out of my range.”

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below. Agency management acknowledged that the Agency’s policy requires
giving an employee a temporary promotion when serving in a management position for an
extended period. The record reflects that between 2012 and 2014 four individuals were
appointed to official acting positions at FCI Tallahassee in various departments (not in the Safety
Department) were in a “temporary supervisory position” within larger department over many
employees.

The Warden stated that he did not explicitly deny Complainant a temporary promotion to Safety
Manager. The Warden explained that Complainant was a Safety Specialist in the Safety
Department and “since this was a two-person department and there was not another person to
supervise. It did not occur to me to initiate this process at the time, nor was it brought to my
attention or requested by [Complainant].”

The Associate Warden stated that at that time, he did not supervise the Safety Department. The
Associate Warden explained that to be denied a temporary promotion “one has to request or be
offered a temporary promotion by management. To my knowledge, management never offered
[Complainant] a temporary promotion. The complainant first brought the request for
consideration for the temporary promotion to me on November 6, 2014.”

The Associate Warden stated that during the November 6, 2014 meeting, Complainant requested
a temporary promotion for the time he had acted in the capacity of Safety Manager and he told
him that he would check with Human Resources Manager (HRM) “to see if it was possible this
late in the acting role as the new Safety Manager was less than a month from arrival. I discussed
the possibility with the HRM and they said no, it was too late.” The Associate Warden stated
that he then notified Complainant of the HRM’s decision.

The Associate Warden stated that he was not aware of Complainant’s prior protected activity
until he mentioned it during mediation.

The Human Resources Manager stated that Complainant’s claim that he was the Acting Safety
Manager was not official because she was not notified by a supervisor. The HR Manager stated
any time Human Resources is notified of a temporary promotion, her office would produce a
Standard Form 52 (SF-52) “Request for Personnel Action” to process the personnel action.
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Here, it appears that Complainant was not given a temporary promotion because he did not ask
for one until his tenure as acting Safety Manager was almost completed. Management
overlooked the fact that Complainant had assumed these duties, but had not been officially
recognized as having done so. This was especially true because Complainant did not supervise
anyone as he was the only employee within the Safety Department.

After careful consideration of the record, we conclude that neither during the investigation nor
on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered
reasons for the disputed actions were a pretext for unlawful retaliation.

Therefore, after a review of the record in its entirety, 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 (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.

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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. 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 30, 2018
Date