01973400
11-04-1999
Dennis Turner, Appellant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Dennis Turner, )
Appellant, )
) Appeal Nos. 01973400; 01973409
v. ) Agency No. P-94-8497
)
Janet Reno, )
Attorney General, )
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
)
DECISION
Appellant timely initiated appeals of two final agency decision (FAD)
concerning his complaints of unlawful employment discrimination on the
bases of race (Black) and reprisal (prior EEO activity), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleged in one formal complaint filed with the agency
that he was discriminated against on the basis of race and reprisal when
the facility Warden (FW): (1) suspended him for fourteen (14) days without
pay for a first time infraction of Bureau of Prisons (BOP) procedures.
In a separate complaint, appellant alleged discrimination on the basis
of race when the FW: (2) placed him on home duty status from October 18,
1993 until March 6, 1994; and (3) treated him less favorably than his
non-Black peers and colleagues, beginning in March of 1993, by altering
his Performance Appraisal and being critical of his job performance.
The appeals are accepted in accordance with EEOC Order No. 960.001,
and will be considered together by the Commission. For the following
reasons, the agency's decisions are AFFIRMED.
The record reveals that appellant was employed as a Correctional Counselor
with the BOP, at the agency's Federal Correctional Institution in
Florence, Colorado (�facility�), when the above-stated allegations of
discrimination occurred. Appellant alleged that there were several
incidents occurring in 1993 in which he was treated less favorably than
non-Black employees, including a lowering of his Performance Appraisal,
talk by other employees about him, comments about his work by management
and other events which appellant believed demonstrated that the Associate
Warden discriminated against him. Appellant alleges that he was placed
on home duty beginning on October 18, 1993 pending the investigation of a
violation of the standards of employee conduct. Shortly after appellant
returned to work on March 4, 1994, he received a letter notifying him
of a proposal to demote him from his Correctional Counselor position
at the GS-9 level to that of a Correctional Officer at the GS-8 level,
based on the charges that appellant violated employee standards by:
(1) allowing inmates to make telephone calls at government expense;
(2) unauthorized use of government mail; (3) allowing an inmate to
receive a package without proper authorization; and (4) failure to follow
policy when mailing inmate packages. On May 10, 1994, the FW suspended
appellant for fourteen (14) days without pay beginning May 16, 1994,
for his violation of security. In issuing the suspension, the FW found
that appellant admitted violating charges (2) and (4).
Appellant has alleged that he received the suspension in retaliation for
prior EEO activity as well as for his conversations with the media and
the office of Senator Ben Nighthorse Campbell alleging discrimination
and mismanagement at the facility.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed formal complaints on April 8, 1994
for allegations (2) and (3), and on July 6, 1994 for allegation (1).
At the conclusion of the simultaneous investigations, appellant was
informed of his right to request a hearing before an Equal Employment
Opportunity Commission (EEOC) Administrative Judge, or request a final
decision by the agency. After initially requesting a hearing before an
Administrative Judge, appellant withdrew that request and requested that
the agency issue final agency decisions regarding both complaints.
The first FAD issued by the agency on February 7, 1997, addressed
allegation (1) and concluded that appellant failed to establish a prima
facie case of race discrimination because he presented no evidence
that similarly situated individuals not in his protected classes
were treated differently under similar circumstances. In so finding,
the FAD noted that other facility employees mentioned by appellant as
receiving letters of reprimand rather than a suspension for a first
offense had less serious infractions and did not involve matters of
facility security, and thus these employees were not similarly situated.
In addition, the FAD found that appellant failed to demonstrate that the
agency retaliated against him due to his protected activity. The FAD
found that the suspension was solely related to appellant's breach of
facility security and was not the result of retaliation by the FW.
The FAD issued on February 27, 1997, which addressed allegations (2)
and (3), found that appellant failed to establish a prima facie case of
race discrimination, as there was insufficient evidence that similarly
situated individuals not in appellant's protected group were not placed
on home duty while a facility investigation was pending. Nevertheless,
the FAD found that the FW placed appellant on home duty for legitimate,
nondiscriminatory reasons, namely, that employees are generally
placed on home duty status where matters of security are involved and
an investigation is ongoing. The FAD found that appellant failed to
demonstrate that the agency's reasons were a pretext for discrimination.
The FAD further found that there were no similarly situated employees
not in appellant's protected class who were treated more favorably
by management in areas such as Performance Appraisals or critique of
work performance. Appellant makes no new arguments on appeal, while
the agency requests that we affirm both its FADs.
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973) and Hochstadt v. Worcester 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), the Commission finds that the FAD issued on February 7, 1997,
and the FAD issued on February 27, 1997, summarized the relevant
facts and referenced the appropriate regulations, policies and laws.
We agree with the FAD which addressed allegation (1) that appellant
failed to present sufficient evidence that the agency's actions in
suspending him for fourteen (14) days in March of 1994 were motivated
by discriminatory animus toward appellant's race or by retaliation
for his prior EEO activity or his comments to the media or Senator
Campbell. We further agree with the FAD which addressed allegations
(2) and (3) that appellant failed to demonstrate that he was placed
on home duty or received less favorable treatment by management due
to race discrimination. In addition, we agree with the FAD's finding
that in any event, the agency articulated legitimate, nondiscriminatory
reasons for placing appellant on home duty and these reasons were not
demonstrated to be pretextual in nature. We thus discern no basis to
disturb the FAD's findings of no discrimination which were based on a
detailed assessment of the record. Therefore, after a careful review
of the record and arguments and evidence not specifically addressed in
this decision, we AFFIRM the FADs issued on February 7 and 27, 1997.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
November 4, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations