Evelina M.v.Dep't of Justice

Equal Employment Opportunity Commission

Dec 11, 2018

EEOC Appeal No. 0120171018 (E.E.O.C. Dec. 11, 2018)

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

Evelina M.,1
Complainant,

v.

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

Appeal No. 0120171018
Hearing No. 510-2014-00160X
Agency No. BOP20130246

DECISION

On 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 4, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

ISSUES PRESENTED

1. Whether the Agency’s final decision (FAD) correctly found that Complainant failed to establish
that she was subjected to discrimination based on reprisal (prior EEO activity) when on or about
December 31, 2012, she was informed that her contract position with Bureau of Prisons (BOP)
was not going to be renewed.

2. Whether the Agency should be sanctioned for issuing its FAD in an untimely manner without
providing a good cause.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Medical
Assistant employed by a private contract health care provider (the Company) working at the
Agency’s Federal Correctional Institution facility located in Miami, Florida (FCI-Miami). On
February 8, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her:

1. On the basis of sex (female) when beginning in approximately March 2012,
she was subjected to a harassing work environment; and

2. In reprisal for raising the allegations set forth in claim 1, when on or about
December 31, 2012, she was informed that her contract position with BOP was
not going to be renewed.

In its FAD, the Agency found that Complainant failed to establish that she was subjected to
harassment based on her sex; and that Complainant was not subjected to retaliation as alleged.
Rather, the Agency argued that her contract was not renewed because her Medical Assistant
contract expired and could not have legally been renewed after December 31, 2012.

Complainant stated that the Acting Health Services Administrator (S1), a coworker (the Nurse),
and the Medical Director (S2) treated her disrespectfully, gave her conflicting work instructions,
and treated her inappropriately in front of other employees. Complainant stated that she
complained orally and in two memoranda to S1, one of which was to the Supervisory Contract
Specialist through S1, about the Nurse’s conduct towards her. Complainant also alleged that the
Agency intentionally terminated the Medical Assistant contract with the Company in retaliation
against her for reporting the harassment. She claimed that S1 had told her that the Nurse would
be completing the paperwork for the renewal of her contract in approximately October 2012; and
that the contract was going to be renewed in either November or early December 2012.

Complainant stated that, on December 27, 2012, the Company’s Project Director (S3) told her he
received an e-mail from S1 stating that the contract with Seaborn was not being renewed. She
stated that S3 told her that S1 made negative comments about her performance, including that she
did not perform certain requested tasks such as drawing blood, and assisting with wound care and
dressing changes. Complainant stated that S1’s statements were false, noting that S1 had issued
her an evaluation with all “Superior” ratings in February 2012.

S1 stated that the non-renewal of the Medical Assistant contract had nothing to do with
Complainant’s allegations of harassment but was based on S2’s determination that he did not need
Complainant’s services any longer, and that S1 was not involved in the determination. S1 stated
that he may have told S3 that there were concerns regarding Complainant’s performance, noting
that S2 had indicated that her performance was “lacking in professionalism and understanding of
the duties.” He added that the contract was terminated for two reasons – S2’s belief that he could
do the job himself, and concerns regarding Complainant’s performance.
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S3 stated that S1 had alluded to the fact that Complainant refused to perform certain duties, but he
added he had no reason to believe Complainant’s performance had anything to do with the non-
renewal of the contract. S3 stated that Complainant’s employment was terminated on December
31, 2012, after the contract between the Company and the Agency was not renewed upon reaching
its maximum duration. He added that the contract “ran its course and could not be renewed by
law”. The Agency noted that the contract had already been extended once and was scheduled to
expire in December 2012.

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. Complainant timely requested a hearing but
subsequently withdrew her request. On March 23, 2017, 197 days after her request for a FAD,
Complainant filed a premature appeal with the Commission and moved for sanctions against the
Agency for failure to timely issue a FAD on her allegations. As a sanction, Complainant sought a
default judgment against the Agency with the amount of damages and other remedies to be
determined. On April 4, 2017, the Agency issued its FAD, i.e., 294 days after Complainant
withdrew her hearing request and asked for a final decision. The FAD concluded that Complainant
failed to prove that the Agency subjected her to discrimination with respect to claims 1 and 2.

CONTENTIONS ON APPEAL

Complainant indicates that she accepts the Agency’s conclusions regarding claim 1, her
harassment claim, and that her appeal is limited only to claim 2. Therefore, this decision will only
address claim 2. Complainant contends that the Agency erred in finding that she was not subjected
to an adverse action when her contract was not renewed, nor subjected to discrimination based on
reprisal. She also maintains that the Agency’s FAD limited her reprisal claim to her contract not
being renewed but did not consider other matters like: 1) her duties being changed, 2) her being
assigned to another job, 3) her being treated unprofessionally by colleagues, and 4) her reports to
her supervisors not being forwarded to S1. Furthermore, she argues that the Agency provided
“shifting reasons” for the nonrenewal of her contract which she believes shows pretext.

The Agency asserts, in pertinent part, that Complainant’s argument does not warrant the reversal
of its FAD.

STANDARD OF REVIEW

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”).
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ANALYSIS AND FINDINGS

Disparate Treatment Claim

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII cases alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor 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). First, Complainant 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. McDonnell Douglas, 411 U.S. at 802. Next, the Agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, then Complainant must prove, by
a preponderance of the evidence, that the legitimate reason(s) proffered by the agency was a pretext
for discrimination. Id. at 256.

Assuming, arguendo, Complainant established a prima facie case of reprisal; we find that the
Agency articulated legitimate, nondiscriminatory reasons for its actions. B1, the Agency’s
Supervisory Contract Specialist, stated that Complainant’s contract had reached its maximum
duration, and could not be renewed. B1 testified that the contract was for one (1) base year; that
it had been granted four (4) option years; and a six (6) month extension. After the contract expired,
B1 stated that there was nothing more that could be done. B1 stated that he, “[c]ontacted the
Medical Department numerous times letting them know that their contract will be expiring on a
certain date and that after this date I cannot extend the contract any further.” The record indicates
that, afterward, the contract was put up for rebid, but the Company was not the successful bidder
on the new contract. S2 and S1 did provide somewhat confusing explanations for why they thought
the contract might not have been renewed, but the record does not indicate that they played any
role in the contract procurement process. Based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein, we affirm the Agency’s
finding of no reprisal discrimination with regard to claim 2.

Violation of EEOC’s Part 1614 Regulation

The record indicates that Complainant requested a final decision on June 14, 2016. EEOC
Regulation 29 C.F.R. § 1614.110(b) provides that “[t]he agency shall issue the final decision
within 60 days of receiving notification that a complainant has requested an immediate decision
from the agency . . ..” Here the final decision was not issued until April 4, 2017, which was 294
days after the request. The Agency has not provided a reason for the untimely issuance of the final
decision. Therefore, the Commission finds that the Agency did not comply with its obligation to
issue a final decision in accordance with the time frames set forth at 29 C.F.R. § 1614.110(b).

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As noted by the Commission in Mach v. Dep’t of Defense, EEOC Appeal No. 0120080658 (Nov.
30, 2010), “the procedures contained in the Commission’s regulations are no more or no less than
the necessary means to eliminate unlawful employment discrimination in Federal employment.”
Accordingly, we find that a sanction in this case is appropriate.

Sanctions

Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the
non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv.,
EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable
remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each
situation by applying the least severe sanction necessary to respond to a party’s failure to show
good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans
Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in
“tailoring” a sanction and determining if a particular sanction is warranted: 1) the extent and nature
of the non-compliance, and the justification presented by the non-complying party; 2) the
prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from
the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep’t of Defense,
EEOC Appeal No. 07A50030 (Mar. 1, 2007).

In the case at hand, we find that the Agency failed to comply with EEOC’s regulations in this case,
and did not show good cause for its noncompliance, when it issued its untimely final decision. We
also note that, regarding the fourth factor, the effect on the integrity of the EEO process should not
be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No.
0720050055 (Dec. 24, 2009). “Protecting the integrity of the 29 C.F.R. Part 1614 process is central
to the Commission’s ability to carry out its charge of eradicating discrimination in the federal
sector.” Id. The Commission must ensure that all parties abide by its regulations and orders.

Based on the specific facts of this case, we find that the most appropriate sanction to address the
Agency’s conduct is to order the Agency to: (1) provide training to its EEO personnel who failed
to comply with our regulatory timeframes; (2) consider taking disciplinary action against these
EEO personnel; and to (3) pay attorney fees, if any, incurred by Complainant for filing the appeal
in this case. Our decision to sanction the Agency in this matter will effectively emphasize to the
Agency the need to comply with the Commission’s regulations in a timely manner. Our sanctions
do not include a monetary award for Complainant, nor does it grant a default judgment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we MODIFY the Agency’s FAD as indicated above. The Agency
shall comply with the ORDER below.

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ORDER

Unless otherwise indicated, the Agency is ordered to complete the following remedial actions
within one hundred and twenty (120) days of the date this decision is issued:

1. The Agency shall provide training to its management officials in its Complaint
Adjudication Office regarding their responsibilities concerning case processing.

2. The Agency shall consider taking appropriate disciplinary action against the
management officials in its Complaint Adjudication Office responsible for the
failure to comply with the Commission’s regulations in this case. The Commission
does not consider training to be disciplinary action. The Agency shall report its
decision to the Compliance Officer. If the Agency decides to take disciplinary
action, it shall identify the action taken. If the Agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision not to impose
discipline. If any of the responsible management officials have left the Agency’s
employ, the Agency shall furnish documentation of their departure date(s).

3. As a sanction, the Agency, if applicable, shall provide Complainant attorney’s
fees for filing this appeal in accordance with the procedures set forth below in
Paragraph H.

The Agency is further directed to submit a report of compliance, as provided in the statement
entitled “Implementation of the Commission’s Decision.” The report shall include supporting
documentation verifying that the corrective action has been implemented.

POSTING ORDER (G0617)

The Agency is ordered to post at its Complaint Adjudication Office located in Washington, DC
copies of the attached notice. Copies of the notice, after being signed by the Agency’s duly
authorized representative, shall be posted both in hard copy and electronic format by the
Agency within 30 calendar days of the date this decision was issued, and shall remain posted for
60 consecutive days, in conspicuous places, including all places where notices to employees are
customarily posted. The Agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed notice is to be submitted
to the Compliance Officer as directed in the paragraph entitled “Implementation of the
Commission’s Decision,” within 10 calendar days of the expiration of the posting period. The
report must be in digital format, and must be submitted via the Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g).

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ATTORNEY’S FEES (H1016)

If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)),
she is entitled to an award of reasonable attorney’s fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney’s fees shall be paid by the Agency. The attorney
shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity
Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this
decision was issued. The Agency shall then process the claim for attorney’s fees in accordance
with 29 C.F.R. § 1614.501.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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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 (R0610)

This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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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. 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

December 11, 2018
Date