Ellsworth S.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Oct 17, 2018

0120172527 (E.E.O.C. Oct. 17, 2018)

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

Ellsworth S.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120172527

Hearing No. 510-2016-00025X

Agency No. BOP-2015-01390

DECISION

On July 15, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 29, 2017, final decision 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Unit Manager, GS-
12, at the Agency’s Federal Prison Camp facility in Pensacola, Florida.

On March 25, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Caucasian), sex (male), age (54), and in reprisal for prior
protected EEO activity when his first-line supervisor denied his request to use his use-or-lose
annual leave on or about November 13, 2014.

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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the
AJ denied the hearing request on the grounds that Complainant failed to show good cause for his
failure to appear at the Initial Conference. The AJ remanded the complaint to the Agency, and the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).2 The decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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. (Aug. 5, 2015) (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”).

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. Of Governors v. Aikens,
460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance
of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 519
(1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

Here, we find that the Agency articulated legitimate, nondiscriminatory reasons for denying
Complainant’s use-or-lose leave request for the period December 22-26, 2014. Specifically, the
Agency purported that Complainant’s request was denied because other employees had already
been approved to take annual leave during the requested dates, and Complainant was needed due
to staffing levels. Complainant’s second-line supervisor (S2) noted that he encouraged
Complainant’s first-line supervisor (S1) to ensure an adequate management presence during times
identified as high leave usage periods, such as holidays.

2 Complainant did not challenge the AJ’s denial of his hearing request on appeal; therefore, the
Commission will exercise its discretion to review only those issues specifically raised on appeal.
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S1 stated that all supervisory staff members were required to submit leave requests for 2014 in
November 2013. According to Complainant’s 2014 Annual Leave Request form dated November
21, 2013, Complainant did not initially submit a time off request for the relevant period. S1
reported that all supervisors who had not made a previous request were informed that they were
needed for coverage purposes during the relevant period. He noted that the department heads
whom were granted time off during the time period at issue requested the leave in November 2013.
S1 added that Complainant received all the time off he requested throughout the year, with the
exception of the relevant period. Additionally, S1 approved his request for sick leave under the
Family and Medical Leave Act and Complainant received time off in January 2015 to cover the
use or lose time that was denied during the relevant period.

Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency’s proffered explanation is
unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

On appeal, Complainant contends that during the relevant period, only white department heads
worked while all three black female department heads were granted leave. However, attendance
records indicate that of the four department heads granted leave from December 22, 2014 through
December 26, 2014, three were white males and one was a black female. Similarly, Complainant
asserted that the denial of his leave coincided with the date that S1 and S2 were contacted by an
EEO Counselor regarding an informal EEO complaint filed by Complainant’s wife. However, S1
reported that he did not learn of the complaint until March 2015. Further, Complainant
acknowledged that S1 and S2 discussed his leave request prior to the alleged date of the phone call
between the EEO Counselor and management. S2 maintained that S1 made all the determinations
regarding leave requests for department heads and that it was not always possible to allow all
department heads to take leave at the same time, especially during high-leave usage periods such
as holidays. Both supervisors emphasized that Complainant received all of the leave he requested
in 2014, except for the leave at issue.

Based on a review of the record, we find that the Agency has proffered legitimate,
nondiscriminatory reasons for its actions. Complainant has not met his burden of establishing that
the Agency’s reasons were pretext to mask discriminatory animus.

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 finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. 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. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). 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

October 17, 2018
Date