0120142503
06-07-2016
Myron S.,1 Complainant, v. Loretta E. Lynch, 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
Myron S.,1
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120142503
Hearing No. 510-2013-00043X
Agency No. BOP-2012-0158
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant's appeal from the Agency's June 18, 2014 final order 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.
BACKGROUND
During the period at issue, Complainant worked as a Laundry Foreman at the Agency's Federal Correction Institution (FCI) in Marianna, Florida.
On February 9, 2012, Complainant filed a formal EEO complaint alleging he was subjected to ongoing harassment (non-sexual) on the bases of sex (male) and in reprisal for prior EEO activity when:
1. from June 2010 through November 2011, his supervisor made derogatory comments, threatened to put him on Absence Without Leave (AWOL) status, and rated his work performance unfairly; and
2. on or about November 2011, his request for leave to attend his daughter's wedding was delayed.
After an investigation, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision Without a Hearing. On May 6, 2014, the AJ issued a decision by summary judgment in favor of the Agency.
In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. Complainant (male) was employed by the Agency as a Laundry Foreman at the Tyndall Air Force Base, Federal Correctional Institution in Marianna, Florida. He had held this position since 1995. His immediate supervisor (female) was the Factory Manager. The supervisor was in this position from 2005 until January 31, 2012.
In 2010, Complainant told his supervisor that he was having marital problems because he had an extramarital affair. Complainant alleged that because his supervisor, who knew his wife, became angry with him because of the affair. Complainant told other employees about his extramarital affair and told them that the supervisor was making derogatory statements about him because she was angry with him over the affair.
The supervisor's work site was about 70 miles from Complainant's work station. Complainant was expected to answer the telephones and assist customers on-site at his duty station. The Agency had written policies that an employee must contact his supervisor personally to request unscheduled leave. The supervisor was concerned that Complainant was not making leave requests directly to her so she did not know when he was out. She told Complainant that he would be placed in AWOL status if he did not get her personal pre-approval to take leave. The record also shows that in a performance log provided for the period of October through December 2010, the supervisor noted that Complainant needed improvement in timely providing leave slips.
Complainant received an overall performance rating of "Exceeds" for the rating period of April 2011 through March 2012. The supervisor did his mid-year progress review, but she had left by the time Complainant received his final rating in April 2012. Complainant had received an "Exceeds" rating for the rating period of April 2010 to March 2011 and April 2009 and March 2010. Complainant also received a "performance log" from the supervisor for the period of January through March 2011, and received either an "Outstanding" or "Exceeds" in every element.
Regarding the request for leave for the wedding, the practice in the unit was for each employee to provide the supervisor with the top four requests for annual leave for the coming year, which the supervisor would grant based on seniority. Complainant made his request for a week of leave in March 2012 to attend his daughter's wedding as his 3rd choice when the staff submitted their 2012 leave requests. Another employee (male) requested the same week as his 2nd choice so his request was initially granted. This coworker decided not to take the week so Complainant could take leave that week for his daughter's wedding. Complainant took the leave.
Based on these facts, the AJ concluded that Complainant did not establish a prima facie case of discrimination on any of the bases alleged and, even if he had, the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. The AJ then determined that Complainant failed to prove, by a preponderance of the evidence, that these articulated reasons were a pretext designed to mask the true discriminatory or retaliatory motivation.
The Agency fully implemented the AJ's decision in its final order. The instant appeal followed.
On appeal, Complainant argues that the AJ erred in issuing a summary judgment because there are material facts at issue. Complainant argues that the AJ "notes one part of a statement by [Laundry Machine Operator Supervisor] where he said he had to ask for leave statements from me. That is true he has also admitted that he has never had to ask for leave statement from me before [the supervisor] got angry at me because she found out I had an extra marital affair and started harassing me and threatening me."
Further, Complainant states "please give me a hearing so all of the witnesses can be questioned before a judge and it is not the writings of a High school graduate going against the law team that has years of legal writing skills. The evidence and witnesses prove my case the legal wrangling of lawyers versus a High school graduate is no way to decide a case please give me a hearing thank you."
ANALYSIS AND FINDINGS
A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
On appeal, Complainant argues that the AJ erred in issuing summary judgment because there are material facts at issue. However, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute.
We find that the AJ's findings of fact are supported by the substantial evidence in the record and that the AJ's decision properly summarized the relevant facts and referenced the appropriate regulations, policies, and laws. The undisputed facts fully support the AJ's determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. After careful review of the record, as well as the arguments presented on appeal, we conclude that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged.
The Agency's final order implementing the AJ's decision without a hearing, finding no discrimination, is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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
June 7, 2016
__________________
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 On appeal, Complainant does not challenge the April 24, 2012 partial dismissal issued by the agency regarding one other claim (that he was discriminated against on the bases of sex and in reprisal for prior EEO activity when on or about August 2011, he had his duties reduced). Therefore, we have not addressed this issue in our decision.
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