0120142729
10-28-2014
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. 0120142729
Agency No. P20120995
DECISION
On May 16, 2014, Complainant filed an appeal from the Agency's April 7, 2014, final decision (FAD) 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 deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Correctional Systems Specialist at the Agency's Federal Correctional Institution facility in Marianna Florida.
On August 20, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On May 14, 2012, Complainant was subjected to an unwarranted drug search of her office and desk.
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). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the Agency found that Management officials articulated legitimate nondiscriminatory reasons for their action when they said that the search of Complainant's office and desk was done in error but was not done for retaliatory reasons. The Agency further found that Complainant failed to establish that reprisal occurred.
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").
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation cases). First, Complainant must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination; i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a legitimate, nondiscriminatory reason(s) for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext for discrimination. Id. at 256.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. In the instant case, the Agency has articulated a legitimate nondiscriminatory reason for its action. The Warden (W) averred that the person conducting the dog search:
made a mistake. If memory serves, I believe we had been experiencing contraband being introduced into the mail area, the mail room, and - which is a part of what [Complainant] supervises. It's her area. And he just allowed them to search in the staff area and made a mistake. It was a call that he made on the spot.
Report of Investigation (ROI), Exhibit 8, p. 4.
The Lieutenant (L) who conducted the dog search averred that:
At no time was I told that - it was my first time -that the dog could only go into areas that were only concerned with the inmate common areas. I didn't realize at the time that they couldn't go into the staff offices. I was directed all areas, so that's what we did. We checked all the areas. And then once those areas were cleared, you know, we went to the different departments throughout the institution doing the same thing.
ROI, Exhibit 13, p. 5.
The Agency having articulated a legitimate nondiscriminatory reason for its action, the burden shifts back to Complainant to demonstrate, by a preponderance of the evidence, that the agency's reason was pretextual, that is, it was not the true reason or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
When asked why she felt that the Agency's articulated reason was a pretext, Complainant averred that:
I do not believe this search was accidental. I feel this search was planned prior to bringing the dogs into the institution as management does for every canine search. In addition, I feel it was planned to take place when the Warden and the Captain were not at the institution to give the appearance that they were not involved, however, these arrangements have to be approved by the Warden in advance. May 14, 2012 was a Monday and the [local] Police Department didn't just show up on a Monday morning without it being planned prior to that date. [L, who was] escort[ing] the canine handler specifically came into the Records Office which is not accessible to the inmate population and never been searched before to my knowledge; ordered me out of the area which was out of my office; out of the Central area of the Records Office and onto the outside porch. Only because I walked back into the Records Office Central area did I witness the Canine Officer entering and exiting my office. Not only did I witness it; but I also witnessed the Canine Officer putting something purple into his right pants pocket as he exited my office and I specifically asked [L] what that was and he stated it was a glove - but as stated before - the Canine Officer wasn't wearing gloves - so what did he have on or in the glove? Then to say the canine hit on my desk. No- [L] didn't stop the Canine Officer from searching my office. [L] himself searched my desk. That was not a mistake! It was planned and executed in a manner to intimidate/harass and discredit my character.
ROI, Exhibit 7, Rebuttal Affidavit, p. 2.
Complainant conceded that one other employee in the same area also had her office searched by the Canine officer and dog "however, I do believe that it was searched to 'make it look good.'" Exhibit 7, p. 9. Complainant explained that she had previously been involved in an EEO complaint against her Supervisor and she believed that the dog search was retaliation by management for such involvement. See id., pp. 5-7.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met her burden of establishing, by a preponderance of the evidence, that reprisal occurred, and we AFFIRM the FAD.
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
October 28, 2014
__________________
Date
2
0120142729
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142729