0120160255
04-24-2018
Nia G.,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
Nia G.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120160255
Hearing No. 460-2012-00118X
Agency No. P201301045
DECISION
On October 17, 2015, 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 September 21, 2015, final order 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 order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision which found that Complainant did not demonstrate that she was subjected to discrimination as alleged.
ISSUE PRESENTED
The issue presented is whether the AJ erred in finding that Complainant was not subjected to reprisal when she was subjected to a series of employment actions.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Correctional Officer, GS-7 at the Agency's Federal Correctional Center (FCC) in Beaumont, Texas. Complainant alleged that she was subjected to reprisal after she requested a meeting with her supervisor's (S1) chain of command to discuss Complainant's belief that S1 was blaming Complainant for her own faulty investigations. Thereafter, on August 31, 2011, Complainant requested official time from the Captain, (C1), to work on her EEO matter. The following day, she was advised that she should send her request to another Captain (C2), which she did, however, she did not receive approval until just before the deadline.
Further, in September 2011, Complainant received an Excellent rating instead of an Outstanding rating for "Controls Contraband." Complainant had previously received an Outstanding and believed she deserved one for this rating period. Finally, Complainant alleged that C2 did not provide her with a good recommendation in connection with her application for a promotion.
On October 3, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when:
1. On August 28, 2011, she was issued a Letter of Counseling by S1 for challenging her before the chain of command.
2. On August 31, 2011, she submitted a request for official time; however, it was not approved until September 2011.
3. In September 2011, her quarterly performance log entries were lowered without justification.
4. On September 19, 2011, a reference check for a Case Manager positon was given by the Complex Captain.
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 (AJ). Complainant timely requested a hearing and the AJ held a hearing on June 2, 2015, and issued a bench decision on August 4, 2015. The AJ found that Complainant did not demonstrate that she was subjected to reprisal as she alleged. First, the AJ determined that Complainant did not show the necessary nexus between her prior EEO activity and the current incidents as her prior EEO activity was at least four months before the first alleged incident of discrimination in August 2011. The AJ noted that the Commission has consistently held that time periods longer than three months were insufficient to establish a nexus between the prior EEO activity and the adverse action. Secondly, the AJ found that with respect to claim number 1, this was more a dispute about the chain of command and was not a protected activity under Title VII, as there was no claim that the dispute was about discrimination. Additionally, the Letter of Counseling she received was not an adverse action because it did not remain in her personnel folder or prevent her from being promoted to Case Manager in June 2012. As a result, with respect to claim one, her prima facie case of retaliation failed.
Further, the AJ found that even if she had established a prima facie case of retaliation, the Agency provided a legitimate, non-retaliatory reason for its decision. This claim resulted from a personality conflict between superior and subordinate. The AJ found that Complainant habitually withheld information from S1, and then circulated detailed e-mails about these occurrences to the upper chain of command. The e-mails diminished S1's credibility in the eyes of her supervisors, even if this was not Complainant's intent. The AJ found that the Letter of Counseling was designed to help Complainant improve her performance and prevent this behavior in the future.
The AJ found that Complainant established a prima facie case of retaliation with respect to claims two through four, because the issue regarding the Letter of Counseling was pending. The AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to claim number 2, the record showed that Complainant initially sent her request for Official Time to the wrong official and after she sent her request to the correct official, she did not tell him that there was a deadline. After waiting weeks to follow up, she eventually informed Agency management that she had an approaching deadline. She was ultimately given, the time and she did not fail to meet her deadline.
Regarding claim number three, Complainant's quarterly performance log entry, management indicated that Complainant was given a positive log entry based on the observation of her work. Finally, management indicated that, contrary to Complainant's assertion otherwise, she was given a positive reference and was ultimately promoted to Case Manager.
The AJ determined that with respect to claims three and four, Complainant believed that Agency management had an obligation to inform her of the reasons for their ratings. The AJ did not find that the Agency's behavior with respect to claims two, three or four rose to the level of unlawful retaliation based on prior EEO activity. The AJ determined that the record contained no evidence of comments, jokes, slurs or name-calling based on Complainant's EEO activity and the Agency's actions caused no professional harm to Complainant. As a result, her claims of reprisal discrimination were not established.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not establish that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that she is not represented because attorneys are expensive and because her union was unable to provide someone with the necessary experience to represent her. Complainant also contends that the AJ was biased against her. She maintains that the AJ erred in finding no nexus between her prior EEO activity and her current complaint. Complainant asserts that with regard to her claim of reprisal, the AJ's finding that more than 90-days had passed and therefore a nexus did not exist is incorrect. She also argues that the AJ erred in finding that there was no adverse action when the Letter of Counseling was temporarily placed in her file.
Further, Complainant contends that the AJ erred in finding that she submitted her request for official time to the wrong supervisor. She questions how the AJ arrived at the conclusion that the Captain that she sent the request to could not approve it. She contends the Agency sent mixed messages regarding who could approve official time. With regards to the reference provided to her, Complainant contends that she does not understand why she did not get the highest rating. She maintains that as an employee, the practice of not giving concrete information prevents an employee from improving.
Finally, Complainant asserts that the AJ did not allow her to use any supporting documents because she did not submit them on time, yet the AJ allowed the Agency to submit their pre-hearing report late. Complainant maintains that this is unfair.
The Agency asserts that the AJ's decision is supported by the record.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we agree with the AJ that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for each of its actions as was discussed above. Further, while Complainant disagreed with the Agency she did not demonstrate that the reasons offered by the Agency were pretext for reprisal discrimination.
Regarding Complainant's contentions on appeal, we find that other than her conclusory statements, wherein she disagrees with the AJ's finding, and where she offers suggestions for improvement of the Agency's process she has not provided any evidence which suggests that the AJ erred in not finding no discrimination in this matter. We note that AJ's have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. � 109. Upon review of the record, the Commission finds no evidence that the AJ abused her discretion in these matters.
Therefore, upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant has not proven discrimination by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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
__4/24/18________________
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.
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