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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0120093298