Paul D.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Mar 16, 2018

0120150276 (E.E.O.C. Mar. 16, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Paul D.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120150276

Hearing No. 420-2014-00119X

Agency No. P-2013-0783

DECISION

On October 27, 2014, 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 21, 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, as
amended (Title VII), 42 U.S.C. § 2000e et seq. Our review is de novo. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Captain, GS-12, and
subsequently as a Lieutenant, GS-11, at the Agency’s Federal Correctional Institution (FCI)
Talledega in Talladega, Alabama. On July 8, 2013, Complainant filed a formal EEO complaint
wherein he claimed that the Agency discriminated against him on the bases of his race
(Caucasian) and in reprisal for his prior protected EEO activity under Title VII when from
December 2012 through April 20, 2013, the Associate Warden subjected him to harassment in
the form of humiliation, undermined authority, threats, unwarranted comments, undesirable work
schedules and a voluntary demotion from Captain to Lieutenant.

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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At the conclusion of the investigation, Complainant was provided a copy of the investigative file
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing. On August 5, 2014, the Agency submitted a Motion for
a Decision without a Hearing. On September 5, 2014, Complainant submitted his objection to
the Agency’s Motion. The AJ granted the Agency’s Motion for Summary Judgment and issued a
decision on September 9, 2014.

In his decision, the AJ stated that with respect to the alleged harassment by humiliation,
Complainant claimed that the Associate Warden (African American) made several jokes about
him, such as stating he needed to start collecting funds for his house payment, and writing on a
Styrofoam cup “Captains fund.” The AJ noted that the Associate Warden asserted she did not
say Complainant needed to start collecting funds for his house payment. According to the
Associate Warden, the Styrofoam cup matter was true but Complainant also wrote her name on
the Styrofoam cup. The Associate Warden asserted that she and Complainant created the cups as
a joke in response to the government furlough. With respect to the alleged harassment through
undermined authority, Complainant claimed that the Associate Warden informed the Union that
he had no binding authority during Union negotiations, and that the Associate Warden ordered
Complainant to transfer two of his subordinates to undesirable shifts. The Associate Warden
maintained that only the Warden has the authority to enter into a binding agreement with the
Union. The Associate Warden asserted that she was not involved in the transfer of
Complainant’s subordinates.

With regard to the alleged harassment by threats, Complainant claimed that the Associate
Warden threatened to “cut” him on several occasions. The Associate Warden denied that she
threatened to “cut” Complainant. As for the alleged harassment by unwarranted comments,
Complainant stated that the Associate Warden remarked that she was going to have his job, she
was going to write him up, that his performance was unacceptable, and that she was going to
write a memo recommending that he be removed from his position. The AJ noted that the
Associate Warden denied the claim that she uttered unwarranted comments to Complainant.

With respect to the alleged harassment via undesirable work schedules, Complainant argued that
he was required to come in early and stay later than his regular shift because the Associate
Warden informed him he needed to put more time into the correctional facility. Complainant
further claimed that the Associate Warden was responsible for him being assigned to the “SR-1”
relief post after he was voluntarily demoted from being a Captain to a Lieutenant. The AJ stated
that the Associate Warden claimed that she wanted Complainant to have an alternative work
schedule so he could interact with his evening shift employees once a week. The Associate
Warden denied that she was responsible for assigning Complainant to the “SR-1” relief post.
The AJ noted that another Associate Warden stated that Complainant was assigned to the “SR-1”
relief post because the Lieutenant who was previously assigned to that post was involved in a
threat assessment with another employee. The Lieutenant needed to be separated from the other
employee and Complainant was assigned to the relief post as the opening occurred at the same
time that Complainant was demoted.
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As for the alleged harassment by voluntary demotion, the AJ observed that Complainant claimed
that he voluntarily demoted to a Lieutenant position due to the way the Associate Warden treated
him. Complainant maintained that he also sought the demotion because he believed the
Associate Warden planned to recommend that he be removed from his position. According to
the Associate Warden, Complainant told her he was requesting a demotion for family reasons.

The AJ found that Complainant failed to establish a prima facie case of disparate treatment race
discrimination. The AJ stated that Complainant did not name any similarly situated employees
as comparisons. The AJ noted that Complainant stated that two Lieutenants were also
humiliated, had their authority undermined, were threatened and were subjected to unwarranted
comments, but the AJ noted that Complainant was not similarly situated since he was a Captain
at that time rather than a Lieutenant. The AJ further stated that Complainant admitted that he did
not know if his race was a factor in any of the alleged incidents. With regard to the demotion,
the AJ reasoned that since it was voluntary, Complainant cannot show the demotion was a direct,
personal deprivation at the hands of the Agency. The AJ found that Complainant failed to set
forth a prima facie case of reprisal. The AJ noted that the instant matter is Complainant’s first
EEO complaint.

With respect to Complainant’s harassment claim, the AJ found that Complainant failed to
establish a prima facie case. The AJ reasoned that the incidents referenced by Complainant were
not so severe or pervasive that it altered the conditions of his employment and created an abusive
working environment. Further, the AJ noted that other employees attested to the fact that the
Associate Warden at times spoke harshly to them and made abrupt comments. Assuming
arguendo that Complainant had set forth a prima facie case of reprisal, the AJ found that the
Agency presented legitimate, nondiscriminatory reasons for its actions. The AJ noted the
aforementioned reasons articulated by the Associate Warden. Upon review of Complainant’s
Response to the Agency’s Motion for Summary Judgment, the AJ found that none of the alleged
incidents were based on Complainant’s race.

The Agency’s final order implemented the AJ’s decision. The Agency stated that there was no
evidence that Complainant engaged in EEO activity prior to May 24, 2013, the date that
Complainant initiated EEO Counselor contact in this matter. The Agency asserted that any
unpleasant conduct or remarks from the Associate Warden were based on Complainant’s or the
Lieutenants’ work performance. With regard to Complainant’s demotion, the Agency stated that
the Associate Warden claimed that she was informed by her predecessor that Complainant was
considering taking a demotion for family reasons. The Associate Warden stated that
Complainant told her, the Warden, and another Associate Warden in April 2013 that he would
never allow the job to interfere with his family. The Agency noted that the Warden and the other
Associate Warden asserted that they heard Complainant say his family obligation was the reason
for his demotion request. The Associate Warden stated that in mid-April 2013 Complainant
informed her that his request to step down had nothing to do with her. The Agency determined
that there was no basis to conclude that Complainant’s demotion was the result of intolerable and
discriminatory working conditions.
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CONTENTIONS ON APPEAL

On appeal, Complainant contends that he established a prima facie case of race discrimination
given that he was qualified for his position, was subjected to an adverse action in being
constructively demoted and then moved to the worst possible shift and position, that he was
subjected to severe humiliation and degradation on a regular and pervasive basis, and that after
he was forced to self-demote he was replaced by someone outside his protected class, an
African-American. Complainant maintains that he has submitted the testimony of numerous
employees, both African-American and Caucasian, who corroborated his claim of race-based
harassment that took the form of severe humiliation and belittlement, undermining of his
authority, and disparate treatment with regard to assignments and schedule. Complainant
contends that the Agency in effect acknowledged the truth of his claims when it issued a written
instruction to the Associate Warden to cease her harassing behavior. Complainant states that this
instruction was issued on May 2, 2013, subsequent to a threat assessment investigation of the
Associate Warden’s conduct. Complainant notes that the instruction stated that any contact with
him should be professional and for work-related purposes only.

Complainant argues that the Associate Warden sent him dozens of threatening emails and
ordered him to remove a Lieutenant and place him on an undesirable shift assignment or post
whenever she had a negative interaction with a Lieutenant. Complainant maintains that on
numerous occasions, the Associate Warden told him if he did not have everything in the
Operational review corrected by May 1, 2013, she would recommend he be removed from his
position. Complainant argues that the Associate Warden consistently undermined or attempted
to undermine his working relationship with other members of the executive staff.

Complainant points out that an African-American Lieutenant stated that he observed the
Associate Warden undermining Complainant’s authority as Captain and treating him
inappropriately and differently than his coworkers. Complainant argues that another African-
American Lieutenant stated that the Associate Warden’s treatment of Complainant was
harassment and degrading. Complainant notes that this Lieutenant asserted that the SR-1
position was used as a punishment post because it has a crazy shift. Complainant states that a
Caucasian Lieutenant testified that he observed the Associate Warden treat him less favorably
than his African-American coworkers. The Caucasian Lieutenant stated that the SR-1 position is
considered a training post for brand new lieutenants. Complainant asserted that another
Caucasian Lieutenant stated that he heard the Associate Warden tell Complainant he has no
authority here, and that she was going to get Complainant. Complainant points out that an
African-American Supervisor Foreman stated that he observed the Associate Warden
inappropriately belittle and undermine his authority. Complainant notes that a Caucasian
Teaching Literacy Coordinator stated that he witnessed the Associate Warden talk down to
Complainant as though he is a child and undermine him.

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In response, the Agency asserts that it was reasonable for the AJ to conclude that race
discrimination did not occur in light of Complainant’s failure to identify similarly situated
employees who were treated differently and his statement that he was not sure if his race played
any role in his interactions with the Associate Warden. The Agency further argues that the
Complainant was not constructively demoted and that the AJ properly concluded that
Complainant sought a demotion voluntarily and therefore the demotion was not the result of any
Agency action or discrimination based on race. As for Complainant’s claim of reprisal, the
Agency maintains that the AJ properly found that Complainant could not set forth a prima facie
case based on Complainant not having engaged in prior protected activity.

ANALYSIS AND FINDINGS

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). 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. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC
Appeal No. 01A24206 (July 11, 2003).

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 was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Tx. 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 Prods., Inc., 530
U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Initially, we observe that Complainant does not challenge on appeal the determination that he
failed to establish a prima facie case of reprisal. We do not discern evidence in the record
indicating this determination was improper and therefore we affirm the finding of no reprisal.

Upon review of the record, we conclude that the AJ appropriately granted summary judgment in
the Agency’s favor because there is no genuine issue of material fact in dispute. The issue
concerns whether Complainant was subjected to disparate treatment and was harassed on the
basis of his race. We observe that Complainant did not name any similarly situated employees
as comparisons. The AJ noted that Complainant stated that two Lieutenants were also
humiliated, had their authority undermined, were threatened, and were subjected to unwarranted
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comments, but the AJ stated that Complainant was not similarly situated since he was a Captain
at that time rather than a Lieutenant. The AJ observed that Complainant acknowledged that he
did not know if his race was a factor in any of the alleged incidents. With regard to the
demotion, we agree with the AJ’s reasoning that since it was voluntary, Complainant cannot
show the demotion was a direct, personal deprivation at the hands of the Agency. We find that
Complainant has failed to set forth a prima facie case of disparate treatment based on his race.

Complainant claims that he was subjected to harassment by the Associate Warden. To establish
this claim, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on his statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City
of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a working environment is hostile,
factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether
it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s
work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (March 8, 1994).

Complainant maintains that he was subjected to harassment in the form of humiliation,
undermined authority, threats, unwarranted comments, undesirable work schedules and a
voluntary demotion from Captain to Lieutenant based on his race. Upon review of the record, it
is evident that the Assistant Warden and Complainant had a strained, uncomfortable working
relationship. It is also evident that the Assistant Warden at times had a difficult relationship with
other members of her staff. The AJ reasoned that the incidents referenced by Complainant were
not so severe or pervasive that it altered the conditions of his employment and created an abusive
working environment. The AJ noted that other employees attested to the fact that the Associate
Warden at times spoke harshly to them and made abrupt comments.

The Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993) that Complainant’s 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 any of the actions taken by the Agency were motivated by
discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency’s implementation of the AJ’s decision
without a hearing was proper and is AFFIRMED.
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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.
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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

March 16, 2018
Date