0120081892
09-04-2009
Mildred M. Greer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Mildred M. Greer,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120081892
Agency Nos. P20050216; P20060221
DECISION
On March 10, 2008, complainant filed an appeal from the agency's February
5, 2008 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the FAD correctly found that complainant failed to establish
discrimination, by a preponderance of the evidence, with respect to
various workplace incidents.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Unit Manager at the Federal Bureau of Prisons ("BOP"), Federal
Correctional Complex in Yazoo City, Mississippi. On May 18, 2005,
August 12, 2005, and June 19, 2006, complainant filed EEO complaints
alleging that she was discriminated against on the bases of race
(African-American), sex (female), and age (51) when:
(1) management ordered and pressured her to "hold accountable" for work
assignments two staff members that she did not wish to supervise1;
(2) her requested schedule change to accommodate a recurring dentist
appointment for extensive dental work, was inappropriately denied on
March 14, 2005;
(3) on April 14, 2005, the Associate Warden denied her request for
assistance in maintaining her unit's caseload;
(4) she was issued a Minimally Satisfactory performance log entry on
April 6, 2005, and a similarly situated white male coworker was not
issued a performance log entry one year later;
(5) her supervisor lowered her overall evaluation from Outstanding to
Exceeds on June 15, 2005; and
(6) her request for sick leave on June 8, 2005 was denied.2
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her 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 she was subjected to discrimination as alleged.
The Final Agency Decision
The Final Agency Decision (FAD) initially noted that complainant claims
that she was subjected to a hostile work environment based on sex,
race and retaliation based on the above six (6) actions, as well as the
following: her involuntary reassignment to Unit 3; management's refusal
of her request that a sexual predator be removed from the compound;
her manager's order that she work on September 12, 2005 in addition to
her 40 hour work week; and the Warden's decision to remove a couch from
her office in October 2005.
The FAD then noted that the EEO Office had rejected complainant's claim
that she was involuntarily reassigned from her unit on February 21, 2005,
because it was outside the forty-five day time frame for contacting
an EEO counselor. The EEO Office referred to the Office of Internal
Affairs complainant's allegation that a sexual predator was allowed
to remain on the compound after she requested he be removed. The EEO
Office did not consider this to be an EEO claim. Rather than amend her
complaint as requested by complainant in October 2005, the EEO Office
stated that complainant's allegations regarding the couch and overtime
could be considered as additional evidence of her harassment claims.
The FAD then found that the agency has articulated legitimate,
nondiscriminatory reasons for its action, as follows: as to (1), the
Warden (Black, female, age 48, prior EEO activity) and the Associate
Warden (Black, female, age 49, prior EEO activity) explained that
complainant was reassigned due to structural changes at Yazoo City and
a new BOP policy about the number of prisoners assigned to each unit
manager. Management addressed complainant's concerns about her assignment
to work with two particular employees (E1 and E2) by conducting a Threat
Assessment. After the Threat Assessment Team concluded that E1 posed
no continuing threat to complainant, they determined that complainant's
assignment to supervise E1 was appropriate. The Warden, Associate Warden
and the Employee Services Manager all say they were previously unaware
of any problems or concerns complainant had about working with E2.
As to issue (2), with regard to complainant's scheduling request, the
Associate Warden testified that she decided that no unit manager could
work a late shift on Monday nights so that all managers could be present
on Monday mornings to address schedule adjustments needed for the week.
Her denial of complainant's request to work a late shift on Monday nights
was consistent with this policy. She also stated that complainant could
have used sick leave for her dental appointments. As to issue (3),
both the Warden and the Associate Warden testified that complainant was
provided with caseload assistance as requested. The record supports
this statement. Although the timing of the assistance appears to have
been limited in effectiveness given that complainant was on leave at
the time, assistance was provided.
As to issue (4), the Associate Warden stated that her issuance of the
"Minimally Satisfactory" log entry was consistent with her policy of
holding managers responsible for the work of the employees they supervise.
She stated that the MS log entry was warranted because the late report
related to a high priority area and all the managers were on notice
about the importance of this report. She explained that another Unit
Manager was not given a negative log entry when the same employee was
late with a report the following year because by then the reports were
no longer a high priority issue. As to issue (5), the Associate Warden
stated that complainant's annual evaluation was in line with the scores
she had received from her previous supervisor and was warranted by her
performance.
Finally, as to issue (6), the Associate Warden explained that she could
not approve a sick leave request that stated that complainant had a
"work related injury" where complainant had not filled out the forms for
a work-related injury. She stated that complainant could have filled out
a new leave request form without the reference to a work related injury
and she would have signed it. Alternatively, complainant could have
submitted supporting documentation of a work-related injury, but she did
not do that either. The FAD then found that complainant did not present
persuasive evidence that the articulated explanations were merely pretexts
for discrimination or retaliation. The FAD additionally addressed the
incidents complainant raised within a hostile work environment framework,
concluding that complainant did not establish that the harassment was
based on her membership in a protected group.
CONTENTIONS ON APPEAL
On appeal, complainant raises no new arguments. The agency asks the
Commission to affirm the FAD.
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 EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (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").
Disparate Treatment
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). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
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,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community 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, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming complainant could establish a prima facie case of discrimination
and retaliation as to all of her claims, the agency has met its burden of
articulating legitimate, nondiscriminatory explanations for each action.
Complainant has simply not shown that, more likely than not, such
reasons are merely masks to hide unlawful discriminatory or retaliatory
motives. In so finding, we note that we do not have the benefit of an
Administrative Judge's findings after a hearing, and therefore, we can
only evaluate the facts based on the weight of the evidence presented
to us.
Harassment
Based on the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17 (1993), in order to prevail on a claim of harassment,
complainant must prove that: (1) she was subjected to harassment that
was sufficiently severe or pervasive to alter the terms or conditions
of employment and create an abusive or hostile environment; and (2) the
harassment was based on her membership in a protected class. See EEOC
Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris
v. Forklift Systems, Inc. at 3, 6; Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). The evidence in the record
is insufficient to support a finding that management's actions towards
complainant were based on either her sex, age, race or prior EEO activity.
See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on
Harris v. Forklift Systems, Inc. at 3, 6.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____9-04-09_____________
Date
1 Complainant elaborates as follows: after assigning complainant to a
unit with 10 staff members, the Warden and Associate Warden pressured her
specifically, to "harass" and "hold accountable" two of the staff members.
The two staff members were the Union President (who had filed a previous
complaint against her) and a staff member who had committed work place
violence against her.
2 Complainant says the last two actions were taken in retaliation for
her filing of the May 18, 2005, complaint, and that retaliation played a
part in the agency's determination not to penalize a similarly situated
male employee in 2006.
??
??
??
??
2
0120081892
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120081892