Eulalia B.,1 Complainant,v.Mathew Whitaker, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171918 (E.E.O.C. Nov. 29, 2018)

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

Eulalia B.,1
Complainant,

v.

Mathew Whitaker,
Acting Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120171918

Agency No. P20060325

DECISION

On May 9, 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
April 17, 2017, final decision 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Records
Administrative Specialist, GS-9, at the Agency’s Metropolitan Detention Center facility in Los
Angeles, California.

On November 2, 2006, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and reprisal for prior protected
EEO activity under an EEO statute that was unspecified in the record when:

1. On December 30, 2005, prison management denied Complainant’s request for
advanced annual leave;

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.
0120171918

2
2. On November 30, 2005, Complainant was not selected to attend pre-retirement
training; and
3. Complainant was subjected to harassment.

The Agency dismissed all three claims (FAD 1) and Complainant appealed to this Commission.
On February 3, 2014, we issued a decision (Decision 1) affirming the Agency’s dismissal of
claim 2 for untimely EEO Counselor contact but reversing and remanding the dismissal of claim
1 to the Agency for an investigation. See Complainant v. Department of Justice, EEOC Appeal
No. 0120113927. Decision 1 did not address claim 3. Despite our affirmance of the dismissal
with regard to claim 2, the Agency investigated claims 1 and 2.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). It is unclear from the record whether
Complainant requested a final decision or merely failed to respond to the notice, but the Agency
issued a final decision2 (FAD 2) pursuant to 29 C.F.R. § 1614.110(b). FAD 2 concluded that,
with regard to claim 1, the Agency articulated legitimate, nondiscriminatory reasons for is action
and that Complainant failed to establish that such reasons were pretextual. With regard to claim
2, the Agency failed to address the matter in the body of its decision. With regard to claim 3, the
Agency did not include it as one of the listed issues, nor did it address it in the body of the
decision.

The instant appeal from Complainant followed.

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”).

Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't

2 We note that, on appeal, Complainant has not complained that she was denied a hearing.
0120171918

3
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

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 when she was denied advanced
leave.

The record shows that Complainant’s advanced leave request was forwarded to the Warden’s
office (W1: Caucasian). W1 averred that he had been on leave at the time and that Complainant’s
leave was denied by the then Acting Warden (W2: race unspecified). The record further shows,
however, that prior to the investigation, W2 retired from the Agency providing no contact
information, and thus he was not interviewed by the Investigator. See Report of Investigation
(ROI) Exhibit 22. We note, however, that during the informal stage W2 spoke with the EEO
Counselor who reported that W2 stated that his decision was:

[N]ot based on any prior or current EEO complaints [Complainant] has alleged,
nor was it based on anything that would violate [Complainant’s] rights under Title
VII of the Civil Rights Act. [W2] stated that advance leave is not a right but a
privilege afforded to his staff, and the Warden or his designee has the right to
approve or disapprove such a request. He further stated that his decision was
based on the operational needs of the Health Services Department.

In addition, the January 3, 2006 letter denying Complainant’s leave request states:

This letter is in response to your request dated December 30, 2005, in which you
request ninety calendar days of leave, to begin January 3, 2006 until April 3,
2006. You further request 160 hours of Advanced Annual Leave, as well as Leave
Without Pay, to justify the remaining absences from January 3, 2006, until April
3, 2006. This is to notify you that your leave request has been disapproved.
Additionally, this is to inform you that we do not have you in an approved leave
status and you will need to contact your supervisor as instructed, as you have been
placed in an Absent Without Leave (AWOL) status. Be advised, if you have
concerns or questions about the entitlement of Family and Medical Leave in
0120171918

4
regards to your Leave Without Pay request, you will need to provide
administratively acceptable medical documentation in support of your request.

Finally, we note that W1 denied that race or reprisal played a part in the denial of Complainant’s
leave and averred that the approval of any request for advanced annual leave was done:

[O]n a case by case basis. It would depend on what the individual needs the time
for. It's not guaranteed that it will be approved, but it depends on whether or not
staffing is adequate - that we can afford to let that individual go on leave. So, I - it
would, again, it would all depend on the circumstances of each case, each request
that was submitted.

Given the above, we find that, despite the fact W2 was unavailable to the investigator, the
Agency has articulated a legitimate, nondiscriminatory reason for its action. The burden next
shifts back to Complaint to establish, by a preponderance of the evidence, that the Agency’s
articulated reason is a mere pretext to mask discrimination. See Hicks; Burdine; McDonnell
Douglas.

Following a review of the record we find that Complainant has failed to meet this burden.
Complainant averred that she believed that the denial of her advanced leave request was based
on race because her first and second level supervisors (S1 & S2: both Filipino/Asian American)
were:

[O]f Asian-Pacific descent, specifically Filipino descent, and the individuals who
worked in the health services unit of Filipino descent, which was the dominant
race - no problem. Constantly getting annual leave, no problem. Advanced this -
advanced that. Time off for their family members, whatever they wanted to do.
They'd go to the Philippines for 30 days advanced leave, never a problem and at
the time, [Time and Attendance was] handled in my office, so of course, I had
privy to that information, but here I ask for one day and I'm told no. And why?
And [S1, S2], they're both of Filipino descent and the majority of the staff there-
they have carte blanche leave. You know, I asked for one day, I'm told no. I asked
for 30 days to help my dad, he's a disabled veteran. He needed help with my mom
and I'm told no. I put in military leave, I'm AWOL’ed for it. You know, why?
Because I'm black? What's, what's the reason here?

While Complainant maintains that the denial of leave was discriminatory because S1&S2 were
Filipino-Americans who favored fellow Filipino employees, the record shows, and Complainant
admits, that neither S1 nor S2 were the ones who denied her leave request, and there is no
evidence in the record to suggest that W2 was Filipino-American, or that he harbored any animus
towards Complainant’s race, or that he was even aware of her race. Nor has Complainant
established a nexus between her prior EEO activity and W2’s denial of her request. We therefore
find that Complainant has failed to meet her burden of establishing, by a preponderance of the
evidence, that the Agency’s articulated reason for its action is a pretext.
0120171918

5

With regard to claim 2, we note that, while we affirmed the Agency’s dismissal of this matter in
our previous decision, the Agency included it among the listed issues in FAD 2. Despite listing
claim 2, however, FAD 2 does not address that claim in the body of the decision. We find that,
under the “law of the case” doctrine, legal or factual determinations once rendered are generally
binding in subsequent proceedings in the same case. Plunkett v. U.S. Postal Service, EEOC
Request No. 05920288 (May 14, 1992). Consequently, the Commission's previous determination
that Complainant’s Counselor contact was untimely, is binding on the parties, see Complainant
v. Department of Justice, EEOC Appeal No. 0120113927, and we will not address the matter
further herein.

Finally, on appeal, Complainant maintains that her harassment claim (claim 3) was not
addressed. We note that the Agency dismissed this claim in FAD 1 on the grounds that
Complainant previously filed the same matter with the Merit Systems Protection Board (MSPB).
While we did not address the matter in Decision 1, we note that under 29 C.F.R. §
1614.107(a)(4), the Agency shall dismiss a complaint where the complainant has raised the
matter in an appeal to the MSPB. Because Complainant elected to pursue this matter before the
MSPB, we find that the matter was correctly dismissed by the Agency.

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 discrimination occurred, and we AFFIRM the FAD.

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
0120171918

6
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.
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 29, 2018
Date