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

Equal Employment Opportunity Commission

Feb 20, 2015

0120123079 (E.E.O.C. Feb. 20, 2015)

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

Complainant,

v.

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

Appeal No. 0120123079

Agency No. BOP-2010-0873

DECISION
Complainant filed an appeal from the Agency’s June 20, 2012 Final Decision 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
Decision, finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor of
Education at the Agency’s Cumberland Federal Correctional Institution (FCI) facility in
Cumberland, Maryland. On November 22, 2010, Complainant filed an EEO complaint
alleging that the Agency discriminated against her on the bases of race (African-American),
sex (female), and in reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when:

On July 1, 2010, Complainant received a one-day suspension.

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). In accordance with Complainant’s request, the Agency issued a
Final Decision pursuant to 29 C.F.R. § 1614.110(b).

In its Decision, the Agency found that Complainant was suspended for one day after an
investigation revealed that she had provided a magazine to an inmate at the request of another
inmate. The Agency considered Complainant’s claim that other employees provide magazines
0120123079

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to inmates in the special housing unit (SHU), and that she has been providing reading materials
to inmates as part of her position as the Supervisor of Education for months and that this
service to the inmates is well known. The Agency found that providing magazines and other
reading materials to inmates in the SHU was not the incident for which Complainant was
suspended, but allowing a SHU inmate to send a note to give a magazine to another identified
inmate is against the rules of the FCI. The Agency found that Complainant took responsibility
for her actions and accordingly, the proposed three-day suspension was reduced to a one-day
suspension. The Agency found that Complainant did not present evidence that the Agency’s
reasons for its actions were a pretext to mask discrimination.

The Decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

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

, at 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). She must generally establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. 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 U.S. Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs,
EEOC Request No. 05950842 (Nov. 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 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy

, EEOC
Request No. 05950351 (Dec. 14, 1995).
In the instant case, we find the record supports the Agency’s Final Decision. Specifically, we
find that multiple witnesses, including witnesses identified by Complainant, confirmed that
magazines are provided to inmates without consequence. We note, however, that
Complainant’s supervisors and other employees confirmed that providing a specific article of
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personal property, or magazine, at the request of one inmate, to another particular inmate, is
prohibited by the Agency’s policies. We find that Complainant did not identify any similarly
situated employees, not in her protected classes, who were not also subjected to discipline for
the same or similar conduct. We find the record supports the Agency’s conclusion that
Complainant’s race, sex, or prior EEO activity played no role in the Agency’s decision to
suspend Complainant for one day for the actions described in the memorandum of decision
directed to Complainant dated July 1, 2010.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision, 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 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).
0120123079

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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

(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

Date
February 20, 2015