Jeffrey K.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2019002744 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeffrey K.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019002744 Agency No. BOP-2017-0033 DECISION On December 10, 2018, 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 November 20, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED Whether Complainant was unlawfully discriminated against based on his interaction with his supervisor on October 6, 2016, and his temporary reassignment after a February 20, 2017 incident. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer, GS-6, at the Agency’s U.S. Penitentiary in Atlanta, Georgia. 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. 2019002744 2 On November 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and in reprisal for prior protected EEO activity arising under Title VII when: 1. On October 6, 2016, Complainant’s supervisor communicated with him in an unprofessional and hostile manner, threatened to discipline him, cursed at him, and kicked a flatbed cart across the compound. 2. Complainant was reassigned from his duties as the ACH-1 Officer and prohibited from working overtime posts inside the institution following an incident that occurred on February 20, 2017. 3. Complainant was referred to as “Duck Dynasty” and “Big Country.” On October 6, 2016, Complainant was working an overtime shift, from 6:00 a.m. through 2:00 p.m., at a special housing unit (SHU). The record indicates that the SHU houses inmates in isolated cells with lockable food slots on the door where officers provide meals. During this shift, Complainant was eating lunch with other officers when he was singled out by his direct supervisor (S1) for eating lunch in the office. Complainant stated that S1 seemed to be in a bad mood and she had multiple outbursts regarding officers sitting in the office. Later during the shift, after the inmates were given their noon meals, S1 discovered that the food slots on some cells were left open. S1 became angry after discovering the unsecured cell food slots and allegedly, “kicked a nearby food cart all the way across the range before slamming the slot closed.” Complainant stated that S1 blamed him for the cell’s unsecured food slot. When he attempted to remove himself from what he called a very hostile situation, at approximately 1:15-1:30 p.m., S1 would not allow Complainant to leave the SHU. Complainant states that S1 threatened to write him up for, among other things, abandoning his post. Complainant stated that S1 made him wait until the end of the shift to leave, although Complainant stated that since it was an overtime shift that he was not required to work the entire shift. S1 did not address Complainant’s allegation that she yelled at only him for eating lunch in the office. However, S1 stated that when she did her rounds, at approximately 12:30 p.m., she confronted the numerous officers about who left the cell’s food slot unsecured. S1 stated that after none of the officers responded regarding who left the cell’s food slot unsecured, she made a general comment to all of them. S1 stated that she then went to one of the cells with an open food slot that also had a large cart in front of it and moved the cart using her foot, but that there was no staff present to witness when she moved the cart. S1 stated that a video was reviewed to determined who left the cells’ food slots open, and it was discovered that Complainant was responsible. S1 stated that when Complainant and another officer attempted to leave at 1:30 p.m., prior to the end of their shift, she had them called back, and informed them that they could not leave the unit until they were relieved. S1 stated that she informed Complainant that she was aware that it was he who left the food slots open, at which time she stated he became irate. 2019002744 3 She stated that she told Complainant that she was his superior and he should not be insolent or insubordinate, and she had to pull Complainant to the side and tell him to calm down. S1 concludes by stating that other supervisors had issues with Complainant in the past, but she had not. Subsequently, on February 23, 2017, Complainant was reassigned from his duties as the ACH-1 Officer to the computer lab to monitor inmate phone calls. Complainant stated that the reassignment was the result of an incident on February 20, 2017. Complainant stated that on February 20, 2017 he was working his regular post when he was escorting an inmate out of the unit. Complainant stated that the individual responsible for opening the unit’s door, the Main Corridor Officer (MCO), was not at his post. As a result of the MCO’s absence from his post, Complainant stated that he was almost caught in the middle of a fight between inmates. Complainant stated that the unit door was eventually opened, and he confronted the MCO for abandoning his post. He also stated that he attempted to address the issue with a supervisor and that the supervisor took the MCO’s side because the MCO is a black male and Complainant is a white male. Complainant stated that, while working in another unit, when he began calling for the door to be opened, the MCO never came. Complainant stated that he began to have a panic attack, and used his body alarm to call for help, which was responded to and the unit door was opened. Complainant stated that, the next shift he worked after this incident, he was reassigned. Complainant stated that he was later assigned back to his original post as ACH-1. Complainant also stated that during his reassignment he was not permitted to work overtime. Additionally, Complainant stated that he was called “Duck Dynasty,” and “Big Country.” He stated that he thought he was called these names to make fun of him being white, and of a certain size, as well as because of where he is from and to infer that he was stupid. Management states that Complainant was not left in the unit without someone monitoring the unit door. Management and other officers stated that Complainant panicked and inappropriately used his emergency body alarm. Due to what management called his “false alarm,” Complainant was reassigned, and during his reassignment he was limited in how many overtime shifts he was permitted to work. Meanwhile, an investigation of the incident was conducted. Finally, some management officials denied having heard Complainant called “Duck Dynasty” or “Big Country,” but one management official confirmed having heard Complainant called “Big Country.” 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2019002744 4 CONTENTIONS ON APPEAL On appeal, Complainant argues that an adequate investigation was not conducted into the February 20, 2017 incident. He states that if an investigation had been conducted, it would have revealed that the MCO assigned to monitor the door in and out of the cell block vacated his post and took the keys to the door with him. Complainant states that the MCO leaving his post and taking his keys with him in essence leaves anyone currently in the cell block trapped in the cell block. He states that he believes that the incident was not investigated because MCO is African-American and well-liked by management. Complainant states that his assertion is further evidenced by the Agency’s decision to focus on his actions instead of the MCO’s actions. Complainant states that the Acting Captain’s (AC) statement that the MCO was only 30 or 40 feet from the door assisting another officer is a false statement. Complainant also states that AC recommended to the Warden that he be reassigned. He also states that it is his belief that the Warden gave the instruction to mid-level management that he was not to work overtime. Complainant’s evidence to support the allegation is the amount of overtime shifts he worked for the three-month period prior to his month and a half reassignment (23 overtime shifts) to the computer lab, and the three-months following the end of his reassignment and return to ACH-1 (22 overtime shifts). Complainant states that he signed up to work overtime shifts while reassigned, just as he did in his usual ACH-1 post; however, he was only assigned one overtime shift. Complainant believes that the Warden’s decision to reassign him and give the instruction for him not to allow him to work overtime shifts was motivated by racial animus against Complainant and reprisal for his prior EEO protected activity. The Agency filed a brief in opposition to Complainant’s appeal in which it urged the Commission to affirm its final decision. 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 (EEO MD- 110), 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”). 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. Co. v. Waters, 438 U.S. 567, 576 (1978). 2019002744 5 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency 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); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). 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); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race, sex, and in reprisal for prior EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. With respect to Claim 1, the Agency articulated that S1 and witnesses gave a similar recounting of the events as Complainant. S1 stated that she inquired to the correctional officers, not just Complainant, as to who left the cells’ food slot unsecured, S1 admitted to and witnesses corroborated that she kicked or pushed the crate with her foot from in front of the cell’s food slot and across the range, and that S1 discussed the cell’s unsecured food slot and leaving of the crate in front of the slot with Complainant. We find that Complainant is alleging he was subjected to harassment by S1 on October 6th. In order to establish unlawful harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2019002744 6 We find insufficient evidence to show that S1’s behavior rose to the level of harassment or abuse based on Complainant’s protected classes. Complainant and S1’s articulation of events do not demonstrate that S1’s verbal discipline was based on his class membership. Complainant has not shown that this was anything other than an isolated incident. For example, there is no evidence that S1’s kicking of a food cart was directed at Complainant but rather expressed her frustration with the cell food slots being left unlocked. The same is true with respect to the eating of lunch in the office. Finally, the evidence appears to indicate that Complainant was responsible for leaving the cell(s) food slot(s) unsecured, and as a result S1’s discussion with him was not unprofessional or rising to the level of harassment or abuse. Therefore, viewing the event in its totality, we find that discriminatory harassment did not occur. With regard to Complainant’s Claim 2 and the related incident on February 20, 2017, multiple witnesses indicated that Complainant’s response to the cell block door not being opened as quickly as he wanted, absent an actual emergency, was unreasonable. The Agency asserted that Complainant’s use of his body alarm was inappropriate, and an investigation was warranted. Additionally, the recommendation to have Complainant reassigned came from the AC who is also a white male, and while not dispositive, tends to counter Complainant’s claim that his race was the reason he was reassigned. Further, AC denies any knowledge of Complainant’s prior EEO activity. We find that Complainant has not shown the agency’s reasons for its action were a pretext for discrimination. With respect to the issue of overtime, it does appear that Complainant was not assigned as much overtime during his reassignment as he was before and after, assuming Complainant’s recollection of how many times he received overtime is correct. However, considering that Complainant was reassigned as a disciplinary action because of his improper use of body alarm in a non-emergency situation, it would follow that Complainant might be restricted from overtime as well. Moreover, Complainant has not identified other employees, who were also temporarily reassigned during an investigation who were able to obtain more overtime than Complainant under similar circumstances. As a result, we find the preponderance of the evidence does not show that Complainant’s reassignment or lack of overtime was motivated by either racial bias or reprisal for prior EEO activity. Lastly, regarding the use of the terms “Duck Dynasty” and “Big Country” to describe Complainant, Complainant does not establish that the Agency’s response to the allegation is pretextual. There is nothing in the record or provided by Complainant to corroborate that the term “Duck Dynasty” was used to describe him or used towards him. Complainant admits that he never advised that he found the nickname “Big Country” offensive, and the one witness who was aware of the nickname “Big Country,” opined that it was due to Complainant’s large stature and Southern accent. Standing alone, neither the terms “Duck Dynasty” and/or “Big Country” are clearly related to race. There is no evidence that the use of these nicknames or phrases was done with any racial bias as the motivation. Complainant asserted that his being a white male in a predominately African-American workforce at the Agency’s facility supports his claim of discrimination. 2019002744 7 However, Complainant’s status as a Caucasian individual working with predominately African- Americans does not, in and of itself, demonstrate that he was targeted for his race in any of the described claims. 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 established that he was subjected to discrimination or reprisal as alleged, and the FAD is AFFIRMED. 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). 2019002744 8 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 January 17, 2020 Date