[Redacted], Clinton M.,1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022002546 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clinton M.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2022002546 Hearing No. 420-2021-00191X Agency No. BOP-2021-00190 DECISION On April 1, 2022, 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 March 2, 2022, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Investigative Supervisor (SIS) Technician, GS-1802-08, at the Agency’s Federal Correctional Complex (FCC) in Yazoo City, Mississippi. Complainant was directly supervised by Special Investigative Agent (SIA)-1 during the relevant period. See Report of Investigation (ROI) at 121 The Complex Warden headed operations at FCC Yazoo City. Id. at 160. In early February 2020, the Agency’s Office of Internal Affairs (OIA) received an allegation of misconduct regarding Complainant. ROI at 70. 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. 2022002546 2 Complainant was accused of introducing contraband into the facility for an inmate (Inmate-1). Id. OIA subsequently referred the allegation to FCC Yazoo City. Id. at 170. Local management ultimately assigned the matter to an SIA (SIA-2) in a different department for investigation. During the internal investigation, Inmate-1 revealed to SIA-2 that his family knew Complainant’s family well. ROI at 70-72. After reviewing telephone recordings made by Inmate- 1, SIA-2 learned that Complainant had been engaged in personal communications with family members of Inmate-1 and another inmate (Inmate-2) by telephone and through social media. Id. As part of the investigation, SIA-2 asked human resources to provide him with Complainant’s Social Security Number, home address, and bank account information. Id. at 205. While SIA-2 did not substantiate the allegation that Complainant had introduced contraband into the facility, SIA-2 ultimately concluded that Complainant had violated the Agency’s policy on personal communications with family members of current and former inmates. See Complainant’s Appeal Brief File, Exhibit C, at 434-38. On October 15, 2020, SIA-1 proposed to remove Complainant from his position for improper contact with an inmate’s family and failure to follow policy. ROI at 292-95. In proposing to remove Complainant, the Agency also charged Complainant with engaging in off-duty misconduct, as he had admitted during the internal investigation that he had been arrested on December 16, 2018, for driving under the influence. Id. Following the investigation, Complainant contacted the Complex Warden on November 3, 2020, to complain about the manner in which SIA-2 had conducted the internal investigation. ROI at 135-36 and 334-36. Complainant claimed that SIA-2 had unnecessarily endangered his life by telling an inmate that he had slept with the inmate’s sister. Id. Complainant asked the Complex Warden to conduct a threat assessment to review SIA-2’s tactics. Id. After learning that Complainant had also complained to the Regional Director, the Complex Warden instructed Complainant to stop emailing the Regional Director and allow the threat assessment process to work itself out. Id. at 161. On December 23, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (black) under Title VII when: 1. On October 15, 2020, he was issued a proposal letter that recommended removal from his current position of SIS Technician. 2. On October 22, 2020, he became aware that his personal information was shared with another staff member. 3. On November 3, 2020, management subjected him to bullying when he was given a direct order to stop emailing the Regional Director. 2022002546 3 Complainant subsequently amended his complaint on January 26, 2021, to add a claim of discrimination based on reprisal when: 4. On January 20, 2021, management subjected him to retaliation when his request for a threat assessment was ignored. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to adjudicate the matter. Complainant subsequently filed a motion to amend his complaint. As the Agency did not oppose the motion, the AJ added the following claim of discrimination based on reprisal when: 5. On April 23, 2021, he was issued a decision letter suspending him for five calendar days and reassigning him from the position of SIS Technician. Following discovery, the Agency filed a motion for a decision without a hearing, urging the AJ to find its favor because Complainant failed to persuasively show that any of the Agency’s actions were based on his protected bases. In so arguing, the Agency emphasized that Complainant had not presented any evidence showing that similarly situated employees who committed the same misconduct were allowed to remain in their positions. While the Agency acknowledged that Complainant named one individual, an African American female, as a comparator (Comparator), whom he alleged had been treated more favorably as her request for a threat assessment was not denied; the Agency emphasized that Complainant had conceded that he did not know any of the details regarding his comparator. The Agency maintained that this individual was not similarly situated to Complainant because she did not hold the same position as Complainant and did not send her request for a threat assessment to the same person as Complainant. Furthermore, the Agency emphasized that the Complex Warden did not ignore Complainant’s request for a threat assessment and gave due consideration to his request; however, she ultimately decided not to convene a threat assessment. Given these factors, the Agency contended that a decision without a hearing was warranted in its favor. Complainant vehemently opposed the Agency’s motion. In his opposition, Complainant argued that the internal investigation was discriminatory because the Agency’s OIA did not authorize it. Complainant, therefore, maintained that SIA-2 had no legal basis to obtain his personal information from human resources. He asserted that when he tried to raise his various concerns regarding the internal investigation to the Complex Warden, the Complex Warden spoke to him in a “very aggressive tone” and labeled his concerns as “nonsense.” Complainant acknowledged that he did not offer any similarly situated employees who were allowed to remain in their positions after engaging in similar misconduct; however, he emphasized that he was not privy to these records. 2022002546 4 While Complainant also conceded that he did not know the details pertaining to Comparator in claim 4, Complainant maintained that he was not privy to the records pertaining to Comparator. Complainant contended that the deficiencies in the record warranted a hearing and emphasized that the hearing process is part of the investigation. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s September 29, 2021, motion for a decision without a hearing and issued a succinct decision without a hearing on January 26, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. This appeal followed. Through his attorney, Complainant vehemently disputes the AJ’s finding of no discrimination and urges us to view his experiences from his perspective. He initially argues that the record contains circumstantial evidence of discrimination because “an African American, black, female was treated differently and favorably by the Agency.” He maintains that the “extreme differential treatment he was subjected to at the hands of the Agency is a sufficient proffer to showcase the Agency has discriminated against him and unduly put his safety at risk.” Complainant argues that his affidavit “confirms the inference as to the discrimination he suffered through is because of his protected category of being African American and male.” As for the internal investigation, which ultimately resulted in his reassignment, Complainant argues that the Agency did not have legitimate, nondiscriminatory reasons for initiating the investigation and maintains that SIA-2 authored an investigative report that contained many inaccuracies. In so arguing, Complainant denies that he violated the Agency’s policy on personal communications with inmates and emphasizes that he followed the established procedure for employees to notify management if they know an inmate. He contends that the Agency’s practice of initiating internal investigation based on mere allegations of misconduct shocks the conscious. Complainant also decries the manner in which SIA-2 conducted the internal investigation and claims that SIA-2 unnecessarily endangered his life and did not have a right to receive his personal information such as his Social Security Number. Finally, Complainant argues that he can establish a prima facie case of reprisal because the Agency failed to act of his request for a threat assessment. He contends that the Agency failed to act because he had engaged in protected EEO activity. Complainant argues that further evidence of reprisal can be seen when the Complex Warden chastised him over the telephone for emailing the Regional Director and ordered him to “stop it with the emails.” He characterizes the Complex Warden’s behavior as harassment that “would discourage an employee from attempting to report misconduct within the Agency.” Given these factors, Complainant requests that we render a decision in his favor. 2022002546 5 The Agency did not file any arguments in opposition to Complainant’s appeal. The Commission’s regulations allow an AJ to grant summary judgment 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we find that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. While we certainly understand Complainant’s concerns regarding the sharing of his personal information during the internal investigation and the issuance of a proposed removal for violating Agency’s policies, we are disinclined to find discrimination, as we are unable to attribute the Agency’s actions to Complainant’s race, sex, and color. We also find no persuasive evidence showing that the Complex Warden’s treatment of Complainant for contact the Regional Director was based on Complainant’s race, sex, or color. To the extent Complainant contends that the Complex Warden’s bullying behavior would reasonably deter employees from engaging in protected EEO activity, we note that Complainant did not raise reprisal as a basis for claim 3. However, even if he did raise reprisal as basis, we still find no discrimination, as our review of the record shows that Complainant never raised any concerns about discrimination to either the Complex Warden or Regional Director. ROI at 57-58 and 330-32. Given Complainant’s failure to allege discrimination, we cannot find the Complex Warden’s failure to initiate a threat assessment to be retaliatory. Finally, we address Complainant’s claims of reprisal when the Agency suspended and reassigned him for violating the Agency’s policies. Having reviewed the record, we find that the Agency had legitimate, nondiscriminatory reasons for doing so. 2022002546 6 While we understand that Complainant disagrees with the Agency’s proffered reasons, we ultimately find no evidence of retaliatory animus. Based on the foregoing, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2022002546 7 Any supporting documentation must be submitted together with the 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 February 14, 2023 Date