Cindy Patton, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionJun 29, 2010
0120093298 (E.E.O.C. Jun. 29, 2010)

0120093298

06-29-2010

Cindy Patton, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.


Cindy Patton,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

(Federal Bureau of Prisons),

Agency.

Appeal No. 0120093298

Hearing No. 461-2008-00082X

Agency No. P-2006-0087

DECISION

Complainant filed an appeal from the Agency's October 22, 2008, 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 worked

as a Health Management Assistant1 at the Agency's Federal Correctional

Complex (FCC) facility in Oakdale, Louisiana. On February 6, 2006,

Complainant filed an EEO complaint alleging that the Agency discriminated

against her on the bases of race (White), sex (female), and reprisal

for prior protected EEO activity, when:

(1) From October 19, 2005 to March 26, 2007, Complainant was

subjected to harassment (non-sexual) in relation to negative performance

log entries; time and attendance; unusually close supervision with

unwarranted criticism; assignment of duties, threatening gestures and

humiliating comments;

(2) Complainant received a one-day suspension effective May 1, 2006;

(3) Complainant was not selected for the position of Cook Supervisor

on February 23, 2007; and

(4) Complainant was not selected for the position of Cook Supervisor

on March 9, 2007.

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 EEOC Administrative Judge (AJ). Complainant

requested a hearing and the AJ held a hearing on July 31, 2008, and

issued a decision on September 11, 2008.

In his decision, the AJ assumed for the sake of argument that Complainant

established a prima facie case of discrimination based on her race, with

respect to claim (1). Administrative Judge's September 11, 2008 Decision

(Decision) at 9. The AJ noted that both Complainant and the Health

Systems Administrator, Complainant's immediate supervisor, S1, are female.

The AJ found that S1's behavior toward Complainant was impacted by S1's

military background that included addressing Complainant by her last name,

as well as using sarcasm and criticism in ordinary communications with

Complainant. Decision, at 10. The AJ did not find that Complainant's

race, sex, or prior EEO activity2 motivated S1's treatment of Complainant.

Instead, the evidence showed that Complainant and S1 had personalities

that clashed. Decision at 12. The AJ found that Complainant was not

harassed by S1 on any of the alleged bases as alleged.

With respect to claim (2), the AJ found that Complainant had been

suspended for one day after she loaned a personal Bible to an inmate,

in violation of the agency's policy. Complainant sought to show that

the suspension was unduly harsh compared to what she believed were more

serious violations by other employees. The AJ considered the suspension

of E1, an employee who had provided soft drinks to inmates as a reward.

Complainant argued that E1's violation was considerably worse than hers,

yet he received the same one-day suspension. Id. at 13. The AJ did

not agree that the differences3 between the two violations should weigh

into the calculus determining the gravity of the infractions decided.

Accordingly, the AJ did not find that the circumstances showed that

discrimination motivated the Warden, FCC Oakdale, Louisiana (W1), to

impose a one-day suspension for Complainant's violation.

Regarding claims (3) and (4), the AJ considered the two non-selection

events as a single event and found that the Agency provided legitimate,

non-discriminatory reasons for selecting the candidates it did, rather

than Complainant for the position of Cook Supervisor. Further, the AJ

found that Complainant's qualifications for the position were not plainly

superior. The AJ credited the testimony of the selecting officials,

including a subject matter expert, E2, and W1. Both W1 and E2 indicated

they considered the experience with large scale food service and ability

to supervise inmates in making their selections. Id. at 15.

The AJ concluded that complainant had not shown that Complainant had

been subjected to discriminatory harassment on the bases of sex, race or

reprisal, nor had Complainant shown that reprisal motivated the agency's

decision to suspend her or to not select her for the Cook Supervisor

positions for which she applied. 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.

CONTENTIONS ON APPEAL

On appeal, Complainant states that of the three candidates selected

for the position of Cook Supervisor, her qualifications were plainly

superior to two of them. Complainant states that her leadership skills,

performance awards and experience with food service exceeded that of

applicants E3 and E4. E3 and E4, Complainant notes are male candidates

with no prior EEO activity. Appellant's Brief in Support of Appeal of

the Agency's Final Decision, at 2.

On appeal, the agency argues that the AJ properly considered that both

Complainant and E1 expressed remorse for the violations with which

they were charged and that the AJ properly considered both violations

significant. Agency Brief in Opposition to Appeal (Opposition), at 19.

Further the Agency points out that Complainant's food service experience

was not with large scale service and that her qualifications for the Cook

Supervisor position were not plainly superior to those of the selected

candidates, which the AJ properly found. Id. at 20.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ will be upheld if supported by substantial evidence in the record.

Substantial evidence is defined as "such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion." Universal

Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

(citation omitted). A finding regarding whether or not discriminatory

intent existed is a factual finding. See Pullman-Standard Co. v. Swint,

456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

An AJ's credibility determination based on the demeanor of a witness or

on the tone of voice of a witness will be accepted unless documents or

other objective evidence so contradicts the testimony or the testimony so

lacks in credibility that a reasonable fact finder would not credit it.

See EEOC Management Directive 110, Chapter 9, at � VI.B. (November 9,

1999).

The Commission notes that Complainant confines her arguments on appeal to

claims (2), (3), and (4). We therefore likewise confine our discussion

and analysis herein to those claims. To the extent that Complainant

is appealing the finding of no discrimination in claim (1), we find

that substantial evidence in the record supports the AJ's finding of no

discrimination in claim (1).

In the instant case we find that with respect to claim (2) (one-day

suspension) that the AJ's decision is supported by substantial evidence

in the record. We consider, as did the AJ, that the circumstances

surrounding the violations committed by Complainant and E1 were mitigated

by factors considered by the Warden, S2. We note that in the past,

inmates had received soft drinks from the Agency as a form of reward and

that E1 regretted having taking it on his own to purchase and provide

the soft drinks as he did. Letter of Proposed Suspension, April 27,

2006 and Letter of Decision, May 18, 2006. We note that the Agency's

custom regarding such rewards had changed. Hearing Transcript (Hr'g

Tr.) 282-283. Complainant also took responsibility for her actions

(HR'G TR. at 44) for having provided a personal item, her own Bible,

to an inmate. Affidavit of Cindy Patton, February 3, 2006. We find the

circumstances of E1's infraction were not significantly more serious

than Complainant's infraction and we acknowledge the Agency's rationale

for maintaining and strictly enforcing its policy prohibiting employees

from giving items or granting personal favors to inmates, however small

or well-intentioned. Hr 'g Tr. at 276. We find Complainant did not

show that the Agency's non-discriminatory reason was a pretext, nor that

the Agency's actions in claim (2) were motivated by discrimination on

any basis.

With respect to claims (3) and (4) (non-selection for Cook Supervisor),

we find the evidence supports the AJ's decision. In nonselection cases,

a complainant can establish pretext by showing that her qualifications

are "plainly superior" to those of selectee. Congiusta v. U.S. Dep't

of Agriculture, EEOC Appeal No. 0120072937 (April 26, 2010) (citing

Wasser v. U.S. Dep't of Labor, EEOC Request No. 05940058 (November 2,

1995)); Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981). We note

that Complainant and three other candidates' names appeared on the Best

Qualified List of candidates. Complainant's Request for Counseling

or Amendment, March 26, 2007, page 2. E3 had experience with a state

facility with large scale food service and experience in the fast food

industry. Hr'g Tr. at 260. E4 does not, as Complainant point out,

have a college degree, and had less total years of experience with

the Agency, but S2 considered that E4 had experience as a meat cutter.

Hr'g Tr. at 259. Complainant's food service experience, S2 noted, was

in a delicatessen setting. Hr'g Tr. at 258. We observe that overall,

Complainant's application was noted as being very well written and her

qualifications and experience compared well to E4's qualifications. Hr'g

Tr. at 468. We do not find, however, that Complainant's qualifications

were so significantly greater than those possessed by either E3 or E4

as to be observably superior. The AJ's finding of no discrimination is

supported by substantial evidence.

CONCLUSION

We AFFIRM the Agency's Final Order finding no discrimination.

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 tends 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 RIGHR'G TR. 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

June 29, 2010

__________________

Date

1 Complainant's position is also described as Health Systems Specialist.

Complainant's Pre-Hearing Report, at 2.

2 The AJ did not find adequate evidence that S1 was aware of Complainant's

prior EEO activity.

3 Complainant argued that she only loaned the Bible to the inmate as a

gesture of compassion, whereas E1 knowingly rewarded inmates with sodas.

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0120093298

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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