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

Equal Employment Opportunity Commission

Apr 23, 2014

0120123473 (E.E.O.C. Apr. 23, 2014)

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. 0120123473

Hearing No. 410-2011-00216X

Agency No. BOP-2010-0833

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 7, 2012 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 final order.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional
Officer at the United States Penitentiary in Atlanta, Georgia. Employees are searched each
day as they enter the medium security prison and then are checked in by management at the
Lieutenant’s station. On July 4, 2010, Complainant was searched upon reporting for duty and
passed by the Lieutenant’s station. When she entered the office, the Lieutenant (L1) asked if
she could search her belongings, and Complainant consented. This search violated Agency
policy as the Warden’s permission is needed to authorize an additional search after an
employee has entered the facility. Complainant claims that she was blocked from leaving the
office by a second Lieutenant (L2) and that she was concerned that co-workers and inmates
might see her while she was being searched.

On October 18, 2010, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (Filipino/African-American), sex (female), and
color (yellow/mocha) when on, July 4, 2010, she was involuntarily detained by three
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Lieutenants and submitted to an unauthorized search of her personal belongings, thus causing a
hostile work environment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on March 5, 2012, and issued a bench decision immediately thereafter.

In his decision, the AJ initially determined that Complainant established a prima facie case of
discrimination and that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, L1 testified credibly that she conducted the search because she felt that
Complainant was bringing in an unusual amount of material. Further, L1 believed that she had
the authority to conduct the search, but she was relatively new to the position. In addition, the
AJ found that L2 testified credibly that he did not intend to block Complainant’s path; instead,
he stood in front of the door to block the view of anyone passing in the hall after he saw that
L1 was going to search Complainant’s belongings.

Next, the AJ determined that Complainant was attempting to argue that, while mistakes
happen, the Agency’s violation of its policy was sufficient to show discrimination. The AJ
concluded that Complainant had not proven by a preponderance of the evidence that the
Agency’s explanation was pretext for unlawful discrimination. Accordingly, the AJ found that
Complainant had not been discriminated against as alleged. The Agency subsequently issued a
final order adopting the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was inadequately represented by her former union
representative and that he failed to raise reprisal as a basis of discrimination at the hearing. In
addition, Complainant argues that the AJ and the Agency were working together to suppress
evidence of the Agency’s corruption, perjury, and concealment of the truth. Further,
Complainant contends that the AJ denied all of her pre-hearing requests and that Agency
witnesses lied in their testimony. Accordingly, Complainant requests that the Commission
reverse the final order.

STANDARD OF REVIEW
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. Nat’l Labor Relations Bd., 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.
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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

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS
As an initial matter, the Commission shall address Complainant's contentions that the AJ
exhibited bias against her and conspired with the Agency to conceal evidence. The
Commission notes that EEOC regulations and Commission precedent provide AJs with broad
discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see
also EEO MD-110, at 9-10. The Commission has reviewed the hearing transcript as well as
all other documentary evidence in the record and is unable to find evidence of bias, or other
reversible error, resulting from the manner in which the AJ managed and adjudicated this
case.1

Disparate Treatment

Turning to the merits of the instant case, the Commission notes that 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 where 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). 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); Tx. Dep't of Cmty. Affairs v. Burdine

, 450 U.S. 248, 256
(1981).
The Commission finds that the AJ's determination that the Agency articulated legitimate,
nondiscriminatory reasons for its actions is supported by substantial record evidence.

1 On appeal, Complainant notes that she attempted to add reprisal as a basis of discrimination
prior to the hearing. The record reveals that Complainant alleged that she was the victim of a
workplace sexual assault in March 2011, and that Agency officials have retaliated against her
since she reported the alleged incident. The AJ did not accept Complainant’s amendment to
include reprisal as a basis of discrimination. The Commission finds that the AJ did not abuse
his discretion by not allowing Complainant’s amendment as Complainant has not alleged
protected activity under Title VII.

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Specifically, L1 testified that she asked to search Complainant’s belongings because she
noticed that Complainant had numerous bags which she thought was unusual. Hr’g Tr., at 55-
56. L1 testified that she believed that she was acting within the scope of her duties and
pursuant to Agency policy. Id. at 56-57. L1 was later informed that she erred only in not
notifying the Warden ahead of time. Id. at 58. L1 denied that Complainant was detained or
that she was blocked from exiting. Id. at 61. L2 confirmed that did he not block Complainant
from leaving and that he stood by the door only to prevent other staff from seeing the search.
Id

. at 46.
The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation was pretext for
discrimination. The record and facts gleaned at the hearing fail to disclose any evidence
purporting to show the Agency's actions were pretext for discriminatory animus. As a result,
the Commission finds that Complainant was not subjected to discrimination as alleged.

CONCLUSION
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
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

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
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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

Date
April 23, 2014