0120111873
08-09-2011
Christopher L. Ellis, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Christopher L. Ellis,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120111873
Hearing No. 532-2010-00077X
Agency No. P20090537
DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s
appeal from the Agency’s February 23, 2011 final order concerning
his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Correctional Officer at the Agency’s Federal Correctional Institute
(FCI) facility in Loretto, Pennsylvania. On July 14, 2009, Complainant
filed a formal complaint alleging that the Agency discriminated against
him on the basis of race (African-American) when: on March 20, 2009,
his employment was terminated.
Complainant stated that he was fully meeting the requirements of his
assigned position, and before his termination, he did not have any prior
disciplinary actions taken against him. Complainant explained that in
December 2007 he disciplined (spanked) foster children in his care for
misbehaving, and in early January 2008 while meeting with Children and
Youth Services, he was informed that criminal charges would be filed
against him. Complainant stated that on January 14, 2008, be was placed
on home duty (administrative leave) for three months.
In April 2008 after returning to work from home duty, Complainant was
stationed in the camp visitor room on night shift; he remained in the
visitor room position for about one year pending the processing of the
criminal charges against him. Complainant stated that on December 30,
2008, his supervisor issued him a written proposed termination notice.
The reasons for the proposed termination were the off-duty misconduct,
his conviction of simple assault (a misdemeanor 3), and his loss of
the ability to maintain a firearm. Complainant stated that on March
10, 2009, his off-duty charges were ''made available" and he was only
convicted of one count of disorderly conduct and no assault charges.
Complainant stated that on March 30, 2009, the Agency terminated his
employment on the basis of his off-duty misconduct and the Warden's
loss of confidence and trust in his integrity, judgment and ability to
perform his job. Complainant identified two co-workers as comparators.
Complainant explained that one co-worker was twice convicted of driving
under the influence (DUI), and he was placed on leave without pay.
Complainant asserted that the other co-worker was charged with sexual
harassment and only moved to a different facility.
At the conclusion of the investigation, Complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing within the time frame provided in 29 C.F.R. § 1614.108(f).
On January 12, 2011, the AJ issued a summary decision finding no
discrimination. In reaching this decision, the AJ determined that
Complainant had failed to establish a prima facie case of discrimination
on the basis of race because he did not identify any similarly situated
correctional officer who was convicted of a violent crime, lost the
ability to maintain a firearm, could not perform the full duties as a
correctional officer, and therefore, was not terminated. The AJ noted
that a review of the record does not reflect that any such comparator
exists in this case. However, even if Complainant could establish a prima
facie case, the Agency had articulated a legitimate, nondiscriminatory
reason for Complainant's termination. The Warden stated that the reason
for Complainant's termination notice was Complainant's off-duty misconduct
(regarding domestic violence).
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(a), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999). (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”).
To prevail in a disparate treatment claim such as this, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant
must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
On appeal, Complainant mainly asserts that a co-worker had been
convicted of a more serious criminal offense and had not been discharged.
Complainant also asserts that he is entitled to a hearing in this matter.
However, as indicated by the AJ, Complainant failed to identify a
similarly situated comparator who would raise an inference of race
discrimination. Even assuming Complainant established a prima facie
case, Complainant has not produced evidence to show that the Agency’s
explanation is a pretext for discrimination or identified material facts
in dispute which could alter the adjudication of his claims.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency's final order,
because the Administrative Judge’s issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence 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 9, 2011
__________________
Date
2
0120111873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111873