0120161784
02-22-2018
Inge C.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Inge C.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120161784
Hearing No. 430201300325X
Agency No. P20130015
DECISION
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 5, 2016, final order 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 Correctional Officer at the Agency's Federal Correctional Institute (FCC) facility in Butner, North Carolina.
On November 28, 2012, Complainant contacted an EEO Counselor. On January 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From August 13, 2012 through August 24, 2012, she was subjected to sexual harassment by a male co-worker in the form of inappropriate comments about her appearance, unwanted requests for dates, and unsolicited phone calls; and
2. On April 2, 2013, she was terminated during her probationary period.
Harassment Claim
The pertinent record reveals the following facts. Complainant is an African-American female probationary employee. The Captain (Hispanic; male, no known EEO) was Complainant's second level supervisor. Her first level supervisor was not identified. The Associate Warden (African-American female) and Warden for FCI-1 (Caucasian, male, no known EEO) was named, along with the FCC Warden (Caucasian, male, no known EEO).
Complainant engaged in protected EEO activity in August of 2012, when she complained of being sexually harassed by a male co-worker. Complainant stated that management was aware of the discrimination, because, in September of 2012, the Agency issued the harasser a cease and desist letter. Hearing Transcript (HT), p 146-148. She claimed that she was subjected to harassment again on October 1, 2012. She made EEO contact on November 28, 2012. Both wardens became aware of her EEO activity in December of 2012.
AWOL / Termination Claim
On April 3, 2013, the Agency issued Complainant a Notice of Termination. The Warden was the deciding official in Complainant's termination. The Agency determined that Complainant had not satisfactorily met the requirements to be in attendance and that her removal was in the best interests of the Agency. The Notice stated that the Agency scheduled Complainant to work on January 6 and January 16, 2013, but Complainant did not report and instead requested sick leave. She stated that she requested the leave because she had car trouble and her child was sick.
An agency can terminate an employee during the probationary period for unsatisfactory performance or conduct by giving notice of the termination.
On January 6, 2013, Complainant was scheduled to work. Complainant requested to use eight hours of sick leave on January 6, 2013 because her child was sick. Her leave was initially approved. For pay period 27 which covered December 30, 2012 to January 12, 2013, however, Complainant had only five hours of sick leave available and 16 hours of annual leave available. Complainant believed she had more sick leave than she did when she requested to use sick leave on January 6, 2013. The Agency charged her with five hours of sick leave and three hours of AWOL.
On January 16, 2013, she was scheduled to work. Complainant called out before her tour of duty because she was having car problems. She said that she was again approved to be absent from work. She spoke with a Lieutenant who was aware she was requesting annual leave and authorized her absence from work, but she was marked as using sick leave. He testified at the hearing that he approved her to be out that day (January 16, 2013). For pay period 01 which covered January 13, 2013 to January 16, 2013, Complainant had a balance of 22 hours of annual leave. Exhibit 22, p. 273. Complainant did not have sufficient accrued sick leave. She was not informed that she did not sufficient leave. The Agency stated that it did not properly approve annual leave before the start of her shift. Car problems are not listed as an exigent circumstance which would have allowed her to be absent without preapproved leave.
She was placed on AWOL. Complainant did not know that she was placed on AWOL.
The Captain forwarded the AWOL charge for January 16, 2013 to the Warden, who referred Complainant's AWOL charges for investigation. On February 11, 2013, an Office of Internal Affairs investigation was conducted regarding the charges of AWOL against Complainant. The Office of Internal Affairs sustained the charges of AWOL against Complainant. ROI-2, Tab 27, at 546-548.
The Agency had a policy that AWOL may be changed to an approved leave category if the employee submits the required supporting evidence within a timeframe prescribed by the approving official. BOP-2013-0582, Ex.538.
The Agency stated that it could not convert the AWOL to Leave Without Pay or annual leave because Complainant did not request the Agency to do so.
Complainant identified another probationary employee (Caucasian male, no known EEO activity) who was a Nursing Assistant, who received 2 AWOLs (one in November 2012 and one in April 2013), who was not referred for investigation and was not terminated.
Hearing Before EEOC Administrative Judge
After its investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ).
The AJ held a hearing on April 28, 2015. During the hearing, Complainant was represented by an attorney.
AJ Decision
Claim 1- Timeliness of Harassment Claim
The AJ made credibility assessments and issued findings of fact in support of her decision, finding that Complainant failed to prove her claims. The AJ stated that she did not credit Complainant's testimony.
The AJ dismissed Claim 1 for untimely EEO contact. The AJ found that Complainant contacted an EEO Counselor on November 28, 2012 and that she did not provide testimony that she contacted an EEO Counselor earlier on November 8, 2012 until after the hearing concluded. The AJ found that the contact with the EEO Counselor regarding the August 2012 incidents were untimely because Complainant did not contact an EEO Counselor within 45 days of the last incident. After the hearing concluded, Complainant told the AJ she contacted an EEO Counselor on November 8, 2012. The AJ did not provide Complainant with the opportunity to supplement the record at that time because the evidence was untimely. The first claim was dismissed.
The AJ considered Complainant's claim regarding the alleged subsequent October 1, 2012 incident, but found that the record did not support the claim. Notwithstanding the dismissal of claim 1, the AJ acknowledged that the Agency sustained the sex harassment charges against the employee who was accused of sexual harassment against another employee and reassigned him for the remaining two weeks of his federal service prior to his medical retirement. The AJ concluded that "per disciplinary procedures, the Agency did not have time to provide formal notice to the harassing co-worker to formally discipline him" further. The AJ concluded that based on the time limitations surrounding the co-worker's retirement, the Agency acted within its scope of responsibility.
Claim 2 - Termination During Probationary Period
With regard to the termination, the AJ found that Complainant had not shown that the comparator was similarly situated. The AJ found that the comparator had a disability (diabetes) and the Agency knew about his medical condition. The comparator's AWOLS were not referred to the Warden. The AJ found that the Agency provided a reasonable accommodation by allowing the comparator an opportunity to provide documentation in order to change his AWOLS to LWOPs.
The AJ dispensed with the prima facie case because she found that the Agency articulated legitimate and non-discriminatory reasons for its conduct. The stated reasons were that the Agency made the determination that Complainant did not satisfactorily follow the attendance requirements. The AJ noted that Complainant acknowledged her absences and had not requested that the AWOLS be converted. The AJ considered Complainant's argument that the Agency should have given her a less severe discipline because her child was sick and because she had car problems.
Complainant compared her treatment to that given to a Caucasian male comparison employee. The comparator occupied a different position. He reportedly had diabetes. The Agency stated it allowed the comparator to provide medical documentation to convert his AWOLS to LWOPs. The hearing included testimony, with regard to the comparison employee that this individual had a documented medical disability and that the Agency allowed the comparator to convert his AWOLs to LWOPS after he made the request and submitted adequate documentation. The Agency contended that no action was taken against the comparator for his November 2012 AWOLS because the Warden believed that he had a medical condition or disability.
The AJ pointed out during the hearing that the comparator had two AWOLS on his time and attendance record from November 2012 until February 2013. The record shows that, although the parties agreed to a protective order to allow the introduction of medical documentation that demonstrated that the comparator had a disability or medical condition, the Agency did not offer any evidence to show the comparator's medical condition. Hearing Transcript (HT), p 430 - 433. There was little evidence to support the Agency's statement that the action was because of a medical condition.
Instead, the record contains the testimony from the responsible management official as to his reasons for allowing the male probationary employee to convert his AWOLS. The Warden testified that the comparator made the request to convert his AWOLS and the manager was providing a reasonable accommodation to the comparator. The AJ found the named management official's testimony to be credible and convincing. The AJ concluded that without further evidence, Complainant failed to demonstrate pretext when she was terminated during her probationary period.
In finding no discrimination, the AJ reasoned that where the complainant is a probationary employee, she is subject to termination at the discretion of an agency so long as these decisions are not based on a discriminatory consideration. She found that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that the Agency's legitimate, non-discriminatory explanation for its actions are pretext for unlawful discrimination.
Agency Decision
The Agency issued its final order adopting the AJ's conclusion that Complainant failed to prove discrimination as alleged.
This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency failed to provide credible evidence to rebut Complainant's prima facie case. In addition, she argues that the AJ erred when she determined that the EEO contact in November of 2012 was untimely and erred, as a matter of law, in finding that the comparator was not similarly situated, that the Agency had met its burden of proof, and that Complainant did not show pretext. Complainant maintains that the Agency should have told her that she had insufficient leave and given her a lesser penalty, because her child was sick and she had car problems. In addition, Complainant asserts that the AJ erred in finding that there was no discrimination. She stated the AJ's determination and decision is not supported by the record or the testimony given at the hearing.
The Agency responds that the AJ's decision is supported by the record and should be affirmed.
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, at � VI.B. (Aug. 5, 2015). Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
Procedural
The AJ found that Complainant had 45 days from August 24, 2012, to contact an EEO Counselor and that her contact was untimely. The record discloses that the alleged discriminatory events occurred between August 12, 2012 and August 24, 2012, but Complainant did not initiate contact with an EEO Counselor until November 28, 2012, which was the date that Complainant and the EEO Counselor acknowledged as the date of the EEO contact. That date was beyond the forty-five (45) day limitation period. Therefore, we find that it was procedurally appropriate for the AJ to dismiss claim 1, which pertained to the sexual harassment claim.
Regarding a second harassment incident that allegedly occurred on October 1, 2012, the AJ did not find the claim to be credible, because Complainant had not referenced the incident prior to her affidavit and the record did not support her claim.
Merits
For the following reasons, we find that the AJ findings of fact or credibility determinations on the merits are sufficiently supported by the record.
Disparate Treatment: Terms and Conditions - Termination During Probationary Period
Section 717 of Title VII states that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . .. race, color and sex." 42 U.S.C. Section 2000e-16(a). Reprisal is also covered, as noted in our regulations at 29 C.F.R. ��1614.101, 1614.102.
Here, Complainant alleges that the Agency subjected her to discrimination based on her race, color, sex and retaliation when management treated her differently than a similarly situated individual, because of her protected groups and prior EEO activity. Even assuming for purposes of analysis (as did the AJ) that she established the elements of her case, the AJ found that the Agency provided a legitimate, non-discriminatory reason for issuing her the AWOLS and terminating her during the probationary period. She was terminated based on the Agency's determination that she failed to comply with the leave procedures, specifically for two periods of being AWOL.
In this case, she acknowledged her absences and that she did not have sufficient leave to cover the sick leave request when her request was made. She was not able to establish pretext of the stated reason or show that the actual reason was based on her race, color, sex or prior EEO activity. Although it may seem harsh, the law does not require leniency.
Finally, however, we would be remiss if we did not consider the facts of this unique situation as one alleging a continuing hostile environment.
To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 Fd.2 897 (11th Cir. 1982.)
To prove a harassment claim, a complainant must establish that he or she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. The complainant must also prove that the conduct was taken because of a protected basis - in this case, because of her race, color, sex, or reprisal. Only if a complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The AJ concluded that the evidence showed that the actions were taken for reasons associated with her AWOLS, not her protected bases.
Upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant had not proven by a preponderance of the evidence that the Agency unlawfully discriminated against her as alleged or that the conduct was taken because of a protected basis.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 tends 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.
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
February 22, 2018
__________________
Date
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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