Dalton C.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 9, 2016

0120140782 (E.E.O.C. Nov. 9, 2016)

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

Dalton C.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120140782

Hearing No. 541-2012-00044X

Agency No. BOP-2011-0521

DECISION

Complainant filed an appeal from the Agency’s November 28, 2013, final order concerning his
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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. The Commission deems the appeal timely and accepts for
de novo review. For the following reasons, the Commission AFFIRMS the Agency’s final
order.

BACKGROUND

Complainant worked as a Senior Officer Specialist at the Federal Correctional Complex (FCC)
in Florence, Colorado. On March 30, 2011, he filed an EEO complaint in which he alleged
that the Warden, the Captain who was his second-line supervisor, and the Lieutenant who was
his first-line supervisor subjected him to disparate treatment and discriminatory harassment
because of his sex (male), religion (Christianity – no denomination specified), disability
(depression), and in reprisal for prior protected EEO activity. He identified the following
incidents in his complaint.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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1. On October 1, 2016, the Lieutenant ordered Complainant to report to the
Administrative Maximum (ADX) facility.

2. Effective March 9, 2011, the Warden suspended Complainant for ten days.

3. On unspecified dates, Complainant was denied access to his computer.

4. On unspecified dates, Complainant’s request for a reasonable accommodation was
denied.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Although Complainant
timely requested a hearing, the AJ assigned to the case granted the Agency’s motion for
summary judgment and issued a decision on November 26, 2013, without holding a hearing.
The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that the Agency subjected him to discrimination as alleged.

The FCC comprised several correctional facilities, including the Federal Corrections Institute
(FCI) and the ADX. Complainant had been assigned to the FCI. On October 16, 2010, the
Lieutenant ordered him to report to the ADX. IR 78. Complainant refused, claiming that
when he was hired, he had reached a verbal understanding with management that he would
only be assigned to the FCI. IR 80-81. When Complainant refused to report to the ADX as
ordered, the Lieutenant recommended that he be disciplined for insubordination. IR 110-11,
182-83, 187. The Warden, the Captain, and the Lieutenant all averred that under the
collective bargaining agreement and the Agency’s regulations, the FCC was the duty station
and corrections officers could be posted at any of the facilities within the FCC. IR 92-93, 100,
183. The Captain also disputed Complainant’s assertion that a corrections officer assigned to
the FCI needed special training in order to work at the ADX. IR 100. As a result of
Complainant’s refusal to obey orders, the Warden suspended him for 10 days between March 9
and March 19, 2011. IR 67-68, 90, 98-99, 109, 168-69.

Complainant alleged that he was denied access to his computer. IR 70-71. None of the three
officials named in the complaint were aware of any employee being denied access to his or her
computer. IR 91, 99-100, 110. Rather, according to one of Complainant’s coworkers, his
computer account had been deactivated for the duration of his suspension. IR 119.

Complainant also alleged that he requested a reasonable accommodation for his religious
beliefs and health issues, and that the Warden refused to grant him his requested
accommodation. IR 64-65. When asked by the investigator what accommodation he was
seeking, Complainant responded that he not be assigned to any facility within the FCC other
than the FCI. IR 69-70. In his formal written request for a reasonable accommodation,
Complainant requested that he “only be allowed to work at FCI, not at other institutions within
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FCC except during an emergency.” IR 174. A memorandum dated March 24, 2011, from
Complainant’s family physician stated that Complainant was being treated for situational
depression and that he would benefit from not having to work at multiple facilities within the
FCC. IR 180. According to the Warden, this was the only documentation that the Human
Resources Manager had received from Complainant, and that there was no identified
prognosis. The Warden also pointed out that there was inherent stress in working at a
correctional facility. IR 88-89. In emails dated April 13 and May 16, 2011, the Human
Resources Manager reminded Complainant that he needed to provide the requested additional
medical documentation to support his request for a reasonable accommodation. IR 170, 172-
73.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on his claims of discrimination and
discriminatory harassment, Complainant would have to present enough evidence to raise a
genuine issue of fact as to whether the Lieutenant, the Captain, and/or the Warden was
motivated by unlawful considerations of his religion, gender, disability, or previous EEO
activity when they took the actions that led to the filing of the instant complaint. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). If the evidentiary record in
this case does not raise a genuine issue of material fact as to the existence of discriminatory
intent, no further inquiry would be necessary as to whether the incidents complained of rise to
the level of harassment or constitute separate acts of discrimination under disparate treatment
theory. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October
15, 2015).

In circumstantial evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reasons articulated by the
Lieutenant, the Captain, and/or the Warden for ordering him to work at the ADX, the
suspension, and the computer-shut-down were pretext, i.e., not the real reason but rather a
cover for discrimination. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993).
Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal
No. 0120060802 (Nov. 20, 2007), request for reconsideration denied EEOC Request No.
0520080211 (May 30, 2008). In this case, the Warden, the Captain, and the Lieutenant all
stated under oath that they were authorized to assign Complainant to any facility within the
FCC, that Complainant was ordered to report to the ADX in accordance with the collective
bargaining agreement and the Agency’s regulations, that Complainant refused to obey the
order to report to the ADX, and that he was consequently issued a ten-day suspension, during
which time his computer had been temporarily deactivated. Complainant did not present any
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sworn statements from other witnesses or documents which contradicted the explanations
provided by the Warden, the Captain, the Lieutenant and his Coworker, or which otherwise
called their veracity into question.

The Agency is required to reasonably accommodate the known limitations of a qualified
individual with a disability, unless it can show that doing so would cause an undue hardship to
its operations. See 29 C.F.R. §§ 1630.2 (o) and (p); EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act
(Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v.
Department of Agriculture, EEOC Appeal No. 0120120400 (December 3, 2015). A qualified
individual with a disability is an “individual with a disability who satisfies the requisite skill,
experience, education, and other job-related requirements of the employment position such
individual holds or desires, and who, with or without reasonable accommodation, can perform
the essential functions of such position. 29 C.F.R. § 1630.2(m). Complainant alleged that the
Agency failed to show that allowing him to remain stationed at the FCI would impose an undue
hardship to its operations. We disagree. There are no indications that in the record that
Complainant ever submitted the documentation necessary for the Agency to make a
determination as to whether he was a qualified individual with a disability. Consequently, we
agree with the AJ that no genuine issue of material fact exists with respect to Complainant’s
entitlement to Rehabilitation Act protection.

Under Title VII, employers are required to accommodate the religious practices of their
employees unless a requested accommodation is shown to impose an undue hardship.
Woodrow B. v. Social Security Admin., EEOC Appeal No. 0120141211 (Sept. 8, 2016) citing
42 U.S.C. § 2000e(j) and 29 C.F.R. § 1605.2(b)(1). The traditional framework for
establishing a prima facie case of discrimination based on religious accommodation requires
Complainant to demonstrate that he has a bona fide religious belief, the practice of which
conflicts with his employment, that he informed the Agency of this belief and conflict, and that
the Agency nevertheless enforced its requirement. Id. We do not question the sincerity of
Complainant’s religious beliefs. However, we find that Complainant has not put forward any
evidence demonstrating how being assigned to the ADX in accordance with the Agency’s
normal procedures for assigning personnel would cause a conflict with those beliefs. As with
our finding regarding disability accommodation, we again agree with the AJ that Complainant
has failed to raise a genuine issue of material fact with respect to his entitlement to a religious
accommodation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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.

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RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 9, 2016
Date