Lester Lonergan, Complainant,v.Janet Reno, Attorney General, U.S. Department of Justice (Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionFeb 1, 2000
01976348 (E.E.O.C. Feb. 1, 2000)

01976348

02-01-2000

Lester Lonergan, Complainant, v. Janet Reno, Attorney General, U.S. Department of Justice (Bureau of Prisons), Agency.


Lester Lonergan v. U.S. Department of Justice

01976348

February 1, 2000

Lester Lonergan, )

Complainant, )

) Appeal No. 01976348

v. ) Agency No. P-95-8705

)

Janet Reno, )

Attorney General, )

U.S. Department of Justice )

(Bureau of Prisons), )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of reprisal (prior EEO activity), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>

Complainant alleges he was discriminated against when he received a seven

day suspension for selling unauthorized books and photographs to inmates.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, complainant was employed

as a Chaplain, Religious Services Department, at the agency's Federal

Correctional Institution, Bureau of Prisons (BOP), Three Rivers, Texas

facility. Complainant alleged that the agency retaliated against him for

filing a previous EEO complaint when it issued him a seven day suspension.

Although complainant admitted to selling the books and photos at cost,

he testified that he did not act inappropriately, or in contravention

of BOP policy.

Specifically, complainant recalled that when he arrived at the facility in

1992, there were prayer books available at the Chapel for those inmates

who requested them. When the supply was gone, he requested a donation

from the book company. However, when the company requested remuneration

for the books, complainant averred that he took the financial obligation

upon himself by charging the inmates 50 cents per prayer book. He averred

that he made no financial gain from the prayer books, and provided no

gifts to the inmates.

Also, in response to the inmates' request for pictures of the crucillo as

mementos, complainant arranged for reprints of the photo at a low price

for inmates. He stated that he did not believe that his actions were in

violation of BOP policy. Specifically, he averred that although the BOP

policy proscribes employees from "offering" or "giving" employees items,

the policy does not specifically prohibit selling items. Therefore,

based upon policy guidelines, he did not believe that he had violated

the policy.

Complainant also believed others had violated BOP policy without being

punished. Specifically, he averred that the Supervisory Chaplain and

the Volunteer Secretary routinely gave favors to inmates, but were

never punished. For instance, complainant testified that the Volunteer

Secretary gave preferred inmates tape recorders so they could communicate

better with family members. He also stated that the Supervisory Chaplain

was not disciplined when he purchased gourmet meals for preferred inmates.

The Warden, Supervisory Chaplain, and Associate Warden all averred that

complainant was investigated and suspended because he violated BOP policy

when he sold the books and photographs. In response to complainant's

allegations of other misconduct, all denied knowledge of complainant's

allegations, including that inmates were provided gourmet meals for

religious ceremonies in violation of policy. The Associate Warden stated

that the Volunteer Secretary did check out tape recorders to inmates, but

it was pursuant to a sanctioned BOP program, and the Volunteer Secretary

had gone through appropriate channels when requesting the tape recorders.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on March 20, 1995.

At the conclusion of the investigation, complainant requested that the

agency issue a final agency decision.

The FAD concluded that complainant failed to establish a prima facie

case of reprisal discrimination because he presented insufficient

evidence of a causal connection between his prior EEO complaint

and the adverse action. Furthermore, the agency found that it

had articulated legitimate nondiscriminatory reason for its action,

namely, that complainant violated BOP policy which forbids, "offer[ing]

or give[ing] to an inmate...any article, favor, or service[s]...which is

not authorized in the performance of the employee's duties." According to

the Supervisory Chaplain, complainant was suspended for failing to request

permission before procuring and selling materials, and for circumventing

the administrative process.

The agency also found that complainant failed to identify similarly

situated individuals not in his protected class were treated differently

under similar circumstances. Specifically, the agency found insufficient

evidence that others had provided gourmet food to inmates for religious

ceremonies in violation of BOP policy. Assuming that others had engaged

in such activity, there was no evidence that management was aware of

such activity, and failed to respond appropriately.

On appeal, complainant contends that employees provided gourmet meals to

inmates for religious services in violation of policy. He denied that

he made "gifts" to inmates, but rather sold the items to them at cost.

He contends that the investigation into his suspension took too long

and was initially postponed for inappropriate reasons. The agency has

not filed a statement in response to complainant's appeal.

After a careful review of the record, based on McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt v. Worcester 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), the Commission finds that complainant failed to present evidence

that more likely than not, the agency's articulated reasons for its

actions were a pretext for discrimination. In reaching this conclusion,

we note that management reasonably believed that complainant's conduct

constituted a violation of policy. Additionally, complainant has failed

to provide sufficient evidence that this policy was disparately applied.

For instance, we find insufficient documentary or testimonial evidence

that agency employees engaged in misconduct, which went unpunished

by management who were aware of such activity. Instead, complainant

provides a list of food which allegedly had been bought for inmates'

religious services. Furthermore, complainant has provided insufficient

evidence that the actions by management were due to a retaliatory motive.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

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 (S1199)

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 (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

February 1, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.