0120122884
08-07-2014
Complainant v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120122884
Agency No. BOP-2011-0216
DECISION
On July 10, 2012, Complainant filed an appeal from the Agency's June 12, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not establish that the Agency subjected her to a hostile work environment on the bases of race, sex, national origin, and reprisal for protected activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer at the Agency's Williamsburg Federal Correctional Institution (FCI) in Salters, South Carolina. On January 16, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), national origin (African-American), sex (female), and reprisal for prior protected EEO activity when, on December 13, 2010, she was subjected to a hostile work environment in the form of continued attempts to humiliate and belittle her in the presence of inmates and staff; constantly being addressed in a condescending manner; being harassed about every aspect of her job, including attempts to invoke anger; and subjected to false slanderous accusations threatening her reputation as a Correctional Officer.
In Summer 2010, a Senior Officer Specialist (SO) who sometimes served as an Acting Activities Lieutenant went to a housing unit where Complainant worked. Complainant told the EEO Investigator that SO saw some inmates gambling in an activities room and told Complainant about it. She stated that she told SO that she cannot watch the inmates all the time, she throws their items away when she catches them gambling, and she does not make a big deal about it. She also stated that SO replied, "That's what we do here, we make a big deal about it." A few days later, a lieutenant (Lieutenant 1) informed Complainant that SO reported that Complainant had refused his order to pat down an inmate. Complainant denied the allegation and explained her version of events. According to Complainant, Lieutenant 1 told Complainant not to worry about it, but also told her that SO stated that Complainant did not belong at the Agency.
On December 13, 2010, when SO was serving as an Acting Activities Lieutenant, he again went to the activities room in the housing unit where Complainant worked. Complainant told the EEO Investigator that SO called Complainant into the room, where he had ordered five to ten inmates to line up against the wall. Complainant asserted that SO tried to belittle her in front of the inmates by telling them that their gambling behavior was making her look stupid and was embarrassing to her. SO "pat searched" the inmates. After the inmates left the room, Complainant told SO that he did not need to speak to the inmates on her behalf. According to Complainant, SO became angry and spoke in a condescending tone. Complainant told SO that, although she had not filed an EEO complaint after the earlier incident, she would not let it be so easy this time. After SO left, Complainant called a lieutenant (Lieutenant 2) and told him what had happened.
In a December 13, 2010, memorandum to the Captain, SO stated that he went to the activities room, noticed that inmates were using gambling chips, directed the inmates to stand against the wall, called Complainant to the room, and asked her to ensure that the inmates did not make suspicious moves while he searched them. SO further stated that, after the inmates left, Complainant accused him of lying about her to Lieutenant 1 regarding the Summer 2010 incident and told him that she did not need him to come to her unit to help her with anything. SO asserted that Complainant was rude, confrontational, and disrespectful toward him in his position as an Acting Activities Lieutenant.
In an attachment to a December 14, 2010, e-mail to the Warden, Complainant stated that SO called her to the activities room, that she complied with his request to watch the inmates who were against the wall while he patted down other inmates, and that SO told the inmates that they looked stupid and embarrassed Complainant. Complainant further stated that, after the inmates left the room, she told SO that she did not need him to speak to inmates or others about her feelings and that she was "upset at his continued attempts to belittle and harass" her. Complainant asserted that, after she reminded SO of an incident when he provided false information to a lieutenant, SO lectured her as if she were a child and asked whether she understood the nature of her job. According to Complainant, SO continued to "badger" and "hassle" her when she went to her office and referred to his lieutenant position in a manner designed to intimidate her.
Complainant told the EEO Investigator that SO "obviously has issues communicating, especially with black females." She asserted that she learned that "this is the way that he addresses females on a regular [basis]" and that SO has spoken in a condescending way over the radio to African-American and female officers. When the EEO Investigator asked for the names of other individuals with whom SO was condescending or derogatory, Complainant could not cite any specific incidents or name any particular individuals. In response to the EEO Investigator's question about Complainant's prior protected activity, Complainant stated that she told Lieutenant 1 that the Summer 2010 incident occurred because of her race, sex, or national origin. She asserted that SO was upset that Lieutenant 1 did not discipline Complainant after the incident.
SO told the EEO Investigator that he had supervisory authority over Complainant when he served as an Acting Activities Lieutenant but did not have authority to take disciplinary actions. He stated that, in Summer 2010, he asked Complainant to "shake down" an inmate but she did not do so and instead allowed the inmate to walk past her. SO told Complainant that she should shake down someone when requested to do so, and he informed Lieutenant 1 of the incident. SO stated that he did not know that Complainant had complained about him to Lieutenant 1. With respect to the December 2010 incident, SO told the EEO Investigator that approximately sixteen to eighteen inmates were counting gambling chips in the activities room; he had them stand against the wall, called for Complainant, and then he "pat searched" the inmates. SO stated that he "counsel[ed] the inmates that they need to be smarter with their little habits and stuff" and that he told them that "you guys can't put [Complainant] out there like that." According to SO, Complainant told him that she did not need him to go to her unit to help her, stated that she did not care what he thought about her, and accused him of lying about her to Lieutenant 1. SO asserted that Complainant berated him and was disrespectful to him as an Activities Lieutenant.
Lieutenant 1 told the EEO Investigator that she had "no idea" whether Complainant ever complained to her about harassment by SO. She stated that she did not recall speaking to Complainant about it and did not recall any incidents involving Complainant and SO.
Lieutenant 2 stated that Complainant called him on December 12, 2010, and told him that SO had harassed her. She did not tell him what had happened. Lieutenant 2 spoke to SO, who stated that Complainant became upset when he confronted her about inmates gambling. This was the only complaint that Lieutenant 2 ever received about SO.
The Captain, who was Complainant's second-level supervisor, told the EEO Investigator that SO was "very active in dealing with inmates and very active in training staff." He believed that SO was doing his job as an Acting Lieutenant and that SO did not intend to embarrass Complainant in front of inmates. The Warden told the EEO Investigator that lieutenants are required to go to each unit during their shifts, that he thought that the December 2010 incident was a personality issue, and that SO correctly confronted staff when they did not perform their duties. In addition, the Warden stated that gambling is prohibited.
The Chief Union Steward, who is a Senior Officer Specialist, told the EEO Investigator that SO "tries to be very condescending" toward female employees. He asserted that SO told him in 2005 that SO received a letter of reprimand for the way that he spoke to a female officer. The Union Steward also asserted that SO was disciplined in early 2006 for opening a cell door when an inmate was not restrained and yelling at the inmate about being disrespectful to female staff. He also asserted that "several staff members" had problems with SO because SO "tries to come off as an authoritative senior." The Union Steward stated that SO will not have issues with a person "if you are a male or if you are [a] very assertive male or female and you are a go-get-them type of person, you are always patting down, you are going above and beyond." According to the Union Steward, SO is "very harsh" with people who "don't meet what is considered his criteria." He asserted that the harsh behavior occurs more toward female employees and overweight employees.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the Agency found that Complainant failed to establish that the Agency discriminated against her on the basis of race, sex, national origin, or reprisal. The Agency concluded that the record did not support Complainant's claim of a discriminatorily hostile work environment. In that regard, the Agency found that there was no evidence that discriminatory animus motivated SO's actions or that SO's actions unreasonably interfered with Complainant's work performance. In addition, the Agency found that the two incidents at issue were isolate incidents that occurred during the normal course of business. Finally, the Agency concluded that Complainant failed to establish a prima facie case of reprisal because there was no evidence that she engaged in prior protected EEO activity.
CONTENTIONS ON APPEAL
The parties raised no contentions on appeal.
STANDARD OF REVIEW
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 Chap. 9, � VI.A. (Nov. 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").
ANALYSIS AND FINDINGS
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23.
To establish a claim of harassment, Complainant must show that: (1) she is a member of the statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. � 1604.11. Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [Complainant's] employment and create an abusive working environment." Harris, 510 U.S. at 21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994) (Enforcement Guidance on Harris). The evaluation "requires careful consideration of the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). The anti-discrimination laws are not a "general civility code." Id.
In this case, the record does not support a finding that the Agency subjected Complainant to discriminatory harassment. There is no evidence that considerations of race, sex, or national origin motivated SO's actions toward Complainant. Complainant alleged that SO spoke in a condescending way to African American and female employees, but she presented no evidence to support that allegation. Although the Chief Union Steward claimed that SO was condescending toward female employees, he stated that several employees had problems with SO's authoritative manner and that SO did not have problems with someone who was a "very assertive male or female." Those statements indicate that SO's views about proper work behavior, rather than discriminatory animus, motivated his actions. On that point, we note that Complainant did not deny that the inmates in her unit were gambling and did not cite to any instances in which SO permitted inmates to gamble.
Further, although Complainant asserted that she told Lieutenant 1 that the Summer 2010 incident occurred because of her race, sex, or national origin, there is no evidence that SO was aware that Complainant had alleged discrimination in connection with the incident. Further, there is no evidence that the December 2010 incident occurred because of the allegation or otherwise in reprisal for protected EEO activity.
The evidence of record does not establish that the Agency took the actions at issue in this complaint because of Complainant's race, sex, national origin or in reprisal for protected EEO activity. Accordingly, we find that Complainant has failed to demonstrate that the Agency discriminatorily subjected her to a hostile work environment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision and its finding of 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).
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 7, 2014
Date
2
0120122884
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122884