0120170443
07-25-2018
Jillian B.,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
Jillian B.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120170443
Agency No. BOP-2014-01024
DECISION
On November 17, 2016, 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 October 26, 2016, 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.
ISSUE PRESENTED
In the instant appeal, we examine whether the final agency decision (FAD) properly found that Complainant did not establish that she was discriminated against or subjected to harassment based on race and reprisal for prior EEO activity when, on or around August 22, 2014, she learned that the Human Resources Manager referred her to the Office of Internal Affairs (OIA) for investigation after they had a verbal exchange during the discussion of a work assignment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-09 at the Agency's Federal Correctional Complex (FCC Beaumont) facility in Beaumont, Texas. The record reflects that in or around October 2013, Complainant reported to the Human Resources Manager's (S2) office to discuss incomplete assignments associated with the Operational Review of the Department. At some point during the meeting, Complainant began to ask questions about the assignment in a manner which S2 found disrespectful. Complainant began accusing S2 of responding to her questions in a racist manner, and asked if the responses would have been different if she were White.2 S2 reported the incident to the Complex Warden, requesting that Complainant be investigated for insubordination and inattention to duty. The Complex Warden subsequently referred the case to OIA for investigation. Complainant became aware of the referral when she was contacted on August 22, 2014 as part of the investigation.
On December 2, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her as articulated in the statement of Issues Presented above. At the time of the EEO complaint, the internal investigation had not been resolved. 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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requests that the Commission reverse the Agency's FAD and issue a decision finding that she established that the Agency subjected her to discrimination on the basis of reprisal. She provides several examples of other employees who challenged S2, but were not referred for investigation. Complainant contends that the only distinction between her and the other employees was that she had engaged in prior EEO activity and she was African American.
In response, the Agency requests that the Commission affirm its FAD finding that Complainant failed to prove that she was subjected to discrimination as alleged. The Agency contends that Complainant cannot establish a prima facie case of discrimination based on reprisal because she is unable to show that she was subjected an adverse employment action. Additionally, the Agency argues that it has articulated a legitimate, non-discriminatory reason for referring Complainant to OIA and Complainant is unable to show pretext.
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").
ANALYSIS AND FINDINGS
Disparate Treatment
In the absence of direct evidence of discrimination, the allocation of burdens and order of presentation of proof in a Title VII case 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). Complainant must initially establish a prima facie case by demonstrating that she 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established prima facie cases of discrimination based on race and reprisal for engaging in prior EEO activity, we find that the Agency articulated legitimate, non-discriminatory reasons for referring Complainant to OIA, and that Complainant did not demonstrate that any conduct on the part of the Agency was based on discriminatory animus.
At the outset, the Commission notes that while there was no information on the outcome of the OIA investigation, Complainant's referral for investigation based on insubordination and inattention to duty was enough to satisfy the adverse action requirement. The record is clear that Complainant did not complete an assigned task associated with the Operational Review of her Department. Also, undisputed in the record, are the facts surrounding the exchange that occurred between Complainant an S2 involving the discussion of this incomplete task. While Complainant alleges that she was targeted for the OIA investigation based on her race and in reprisal for prior EEO activity, she has not established this by preponderant evidence in the record. While Complainant makes generalized assertions that she disagrees with the Agency's non-discriminatory reasons for referring her for an OIA investigation, she offers no evidentiary support that would disprove Management's asserted reasons. Complainant's contention that other employees exhibited similar behaviors, but were not referred for an OIA investigation, is without support.
In sum, our review of the record confirms the Agency's assertion that its decisions were based on its determination of how best to effectively manage the workplace and its assessment of Complainant's performance and conduct in the workplace. Nothing in the record, or submitted on appeal by Complainant, demonstrate that the actions were in any way motivated by discriminatory animus. The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (January 16, 1997).
Harassment
With respect to Complainant's contention that she was subject to a hostile work environment with respect to the matters set forth in her complaint, we find that under the standards set forth in Harris her claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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.
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
__7/25/18________________
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.
2 Complainant states, and the record reflects, that she asked S2 "if [she] had blonde hair and blue eyes, would [she] have a problem with answering [her] questions?"
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170443
6
0120170443