Dominica H.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 20160120140565 (E.E.O.C. Jun. 3, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 0120140565 Hearing No. 470-2012-00109X Agency No. BOP-2011-0837 DECISION Complainant filed an appeal from the Agency’s final order dated October 30, 2013, finding no discrimination with regard to her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, dated July 20, 2011, Complainant alleged discrimination based on sex (female) and in reprisal for prior EEO activity when on May 10, 2011, she was terminated from the Agency during her probationary period. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On August 28, 2013, the AJ, after a hearing, issued a decision finding no discrimination. The Agency’s final order implemented the AJ’s decision. 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. 0120140565 2 ANALYSIS AND FINDINGS 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. National Labor Relations Board, 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. 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 EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999). In the instant case, assuming arguendo that Complainant established a prima facie case of discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for the alleged termination. The record indicates that on September 26, 2010, Complainant began working as a Correctional Officer, GL-0007-05, subject to one year probationary period, at the Agency’s Federal Correctional Institution, Ashland, Kentucky. The record indicates that on October 22, 2010, Complainant received a parking ticket from a police officer, Russell, Kentucky, while she was shopping at the Russell Kroger store. The police officer indicated in his police report that on October 22, 2010, he issued the parking ticket for Complainant’s car parked in the fire lane in front of the store. The police officer further stated that as he was leaving, someone flagged him about a small child strapped in Complainant’s car seat. The police officer stated that he then asked a Kroger’s employee to page the owner of the car and Complainant came out from the store after ten minutes. The police officer stated that when he tried to talk to her about leaving her baby in the car, she cursed and said “I am a damn good mother” and she called her mother on her cell phone telling her “It’s these two fucking Russell policemen. They’re being assholes.” The police officer stated that Complainant had a suspended driver’s license. The record indicates that the police officer filed a summons with the county attorney the next day and Complainant was served the summons on October 29, 2010, from Greenup County, Kentucky District Court, charging her for operating a motor vehicle with a suspended/revoked operator’s license and for wanton endangerment 2nd degree, which were ultimately dismissed and diverted for six months, respectively. Complainant’s Warden stated that on October 23, 2010, his office received a call from the Police Department concerning Complainant’s identity and her getting a traffic violation. On October 29, 2010, Complainant reported to the Agency about the criminal complaints/summons she was served by the Court. The Agency Special Investigative Supervisor (SIS) then initiated an investigation of the charges against her misconduct. After the investigation, the SIS concluded that the misconduct charged was sustained for her 0120140565 3 discreditable behavior and lack of candor. After consulting with the Human Resources Office, the Warden made a decision to remove her during her probationary period due to her unsatisfactory conduct related to the incidents occurring on October 22, 2010, described above. Specifically, the Warden indicated that Complainant’s conduct on October 22, 2010, undermined the professional demeanor and integrity which she was expected to display as an Agency employee. After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for the alleged removal during her probationary period. We also agree with the AJ that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s decision is supported by substantial evidence. 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. 0120140565 4 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 (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 June 3, 2016 Date Copy with citationCopy as parenthetical citation