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

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020001168 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Coralee H.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001168 Hearing No. 420-2019-00114X Agency No. BOP-2017-01063 DECISION On November 16, 2019, 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 15, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Officer Specialist, GS-0007-08, at the Agency’s Federal Correctional Institution (FCI) facility in Aliceville, Alabama. On September 18, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and/or harassment (non-sexual and/or sexual) on the bases of race (Black), sex (female, sexual orientation2),3 and reprisal for prior protected EEO activity. 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 Complainant did not identify her sexual orientation. 2020001168 2 In so doing, she noted 62 alleged events of harassment and/or discrimination occurring between December 10, 2015 and August 24, 2017. The Agency accepted the following alleged instances of discrimination and/or harassment: 1. On June 28 and July 20, 2017, Complainant was denied overtime; 2. On July 8, 2017, management failed to respond appropriately to Complainant’s attempt to notify management of her illness; 3. On July 26, 2017, management issued an incomplete yearly performance evaluation into Complainant’s electronic official personnel folder (eopf); 4. On August 24, 2017, management violated EEO confidentiality; and 5. On August 28, 2017, Complainant became aware that management altered the overtime duty roster. The Agency accepted the complaint as containing claims (1) through (5) and conducted an investigation, which produced the following pertinent facts: Regarding claims (1) and (5), Complainant clarified that the alleged events in claim (5) occurred on June 28, 2017 and July 20, 2017, the same dates as the allegations in claim (1). She attested that, on June 28, 2017, she was not called for overtime, even though she was at the top of the overtime roster. She attested that the overtime was given to a co-worker (CW) who had previously worked overtime a few days earlier. She attested that the logbook for that post should document overtime and the daily assignment rosters should not be trusted. She attested that she had been passed over for overtime for a while and July 20, 2017 was the most recent incident. Complainant alleged that, whenever she was number one on the overtime list, instead of the lieutenant contacting her for the overtime, the lieutenant would intentionally bypass her or adjust the roster and ask an employee on the same shift to work that post for an additional day off. Complainant explained that it was possible to alter the overtime roster. She explained that, when an employee accepts or declines overtime, the supervisor is supposed to input their name and date and their name automatically drops to the bottom of the list. She explained that, if management does not input that information, the employee is going to stay in the same place on the list. She attested that CW was allowed to work overtime on June 25 and 28, 2017 because, after he worked overtime on June 25, 2017, his name was not dropped. 3 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep't of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020001168 3 Complainant attested that she met with the warden (Warden) and informed her of the issue with overtime, including that a lieutenant (LT1) had skipped her for overtime. She attested that Warden looked into the matter, the roster was corrected, and Complainant received overtime pay. Warden attested that Captain had reported to her that there were instances where staff were passed over for overtime, but, to the best of her knowledge, it was rectified. LT1 attested that there is a computer program for the overtime roster, and, during June 2017, it malfunctioned, and they were paying staff that were missed. He attested that lieutenants were disciplined for not taking steps to correct the computer program. He attested that the program still does not work properly, but the process is that, the lieutenant enters the place of the overtime and the names will pop up and, because he knows of the problems with the program, he will review the sign-up roster to check over the names to make sure the program is working correctly. He noted that, if a mistake is made, staff are payed for the overtime they missed, as that is part of the agreement with the Union. Regarding claim (2), Complainant attested that the alleged events occurred on June 8, 2017. She attested that, on June 7, 2017, she had already worked an 8-hour shift from 4:00 pm until midnight when she was mandated to continue working. She attested that she was not told she was going to be mandated to work nor did they attempt to fill the position with overtime. She attested that, when she was not relieved, she contacted LT1 and he told her that he did not have relief and that she would have to stay. She attested that she told him that she was not feeling well and needed to go home, but he did not send relief until 6:45 am. She asserted that there were two Compound Officers working that night and he could have sent one of them to relieve her. LT1 attested that he was working the morning watch on June 5 through 9, 2017 and he did not recall mandating Complainant to work or her saying that she needed to leave because she was sick. He attested that, if Officers are sick, he has them relieved and documents what happened for future reference. LT1 attested that he reviewed the daily assignment rosters and Complainant worked evening watch on June 6 and then worked 15 minutes overtime. He also attested that Complainant worked overtime on June 7, 2017, but it was the whole shift. Warden explained that mandating overtime is not a violation of policy. Regarding claim (3), Complainant attested that, on or about July 26, 2017, she went into her eopf and learned that her annual performance evaluation was not filled out completely and it was noted that she refused to sign. Complainant attested that, when a lieutenant (LT2) presented it to her in April, it was blank, with nothing on it but her name, and she refused to sign it. She attested that, when it was uploaded, there was an X by the E for the overall rating, but the individual ratings should have been marked as well, but they were not. 2020001168 4 Complainant explained that the lieutenants were supposed to give staff quarterly evaluations, which they did not do with her. She attested that the performance logs that she saw appeared to have been altered. She explained that the evaluations were supposed to be filled out before a person signs it, but LT2 tried to get her to sign a blank yearly evaluation. She attested that, when she told him she objected and wanted to discuss it, he refused to meet with her and stated that he would put “refuse to sign” on the evaluation. LT2 attested that he was assigned to be Complainant’s evaluator after another lieutenant transferred out of the facility. He attested that Complainant came to see him just before the annual ratings about getting good vouchering for promotions, and he mentioned that he had been assigned as her evaluator. He attested that, when he advised Complainant of this, she objected and became very upset and went to speak to Captain. LT2 attested that Complainant was rated for each quarter, but he only rated her for the last quarter. He attested that he recalled meeting with Complainant to discuss her ratings and that she refused to sign the appraisal. He attested that he rated Complainant as he saw her performance and it was lower than the previous rater. He explained that the overall rating is based on the ratings given to the individual performance log entries and he did not think the ratings for the individual elements needed to be checked. LT2 attested that he presented the last quarterly performance log entries to Complainant when they met to discuss her annual rating and he did not recall giving her all of the performance logs for the year. He attested that it was not his handwriting on the performance entries indicating that Complainant refused to sign and he did not recall Complainant asking for additional time to discuss her ratings, except fort the one time when she refused to sign and made a copy of the evaluation. Regarding claim (4), Complainant alleged that management intentionally listed “EEO” on her daily assignments and lieutenants, the time and attendance clerk, and others have access to that information. She alleged that the roster read “EEO Official Time,” when it should have read “Official Time.” Complainant asserted that her EEO activity is a private matter and only those employees who need to know this should know. Complainant alleged this notation was made on the schedule for August 23 and 25, 2017 and December 12, 13, and 14, 2017, as well as during her 2016 EEO complaint. Complainant attested that she did not know who entered the notation but she assumed it was the captain (Captain). LT3 attested that he did not recall seeing the notation of “EEO” on the daily assignment rosters and he has made thousands of roster changes, but he never put anyone on a roster for that. He explained that this would be done by whoever is working the roster that day. He attested that he recalled seeing “Union Official Time” on the roster, but not “EEO Official Time.” LT1 attested that he has only recently seen the notation of “EEO” on the daily assignment roster, noting that he was appointed as the Administrative Lieutenant at the end of the year. He attested that he has seen notations for “Official Time” without any clarification as to what it was for and “Union Official Time.” 2020001168 5 Further regarding her harassment allegations, Complainant attested that she met with the Associate Warden on May 18, 2017 to complain about Captain and how she was ignoring Complainant’s email, harassing her, and creating a hostile work environment. Complainant attested that Captain emailed her and scheduled a meeting on June 28, 2017, which was a day that Complainant was scheduled for annual leave. Complainant believed this was intentional. She attested that she met with Captain in the break room and the Associate Warden did not attend, but staff members were coming and out. Complainant also alleged she met with LT3 about canceling her leave and he replied that she had sent him an email advising him to cancel her leave, but Complainant did not recall doing that. LT1 attested that the records show that Complainant was scheduled for leave on June 18 to July 1, 2017 but she canceled her leave, with the exception of June 30 and July 1, 2017. LT3 explained that officers have the prerogative to cancel scheduled leave and they are put on the same shift and post, if possible. 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 15, 2019, motion for a decision without a hearing and issued a decision without a hearing on September 5, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant reiterates her allegation that she has been subject to retaliation since August 2015, when she initially contacted an EEO Counselor regarding another complaint. She also alleges that the Agency’s EEO Office is biased against her. She alleges that, in a prior complaint, she attempted to amend her complaint, and the AJ denied her motion and indicated that the Agency should consider her submission of the amendments as her date of initial contact with an EEO Counselor. She asserts that the Agency only accepted those claims within 45 days of her contacting the EEO Counselor. She also reiterates a complicated legal history and argues that claims 38 through 66 of a prior complaint have not been addressed.4 Complainant also reiterates her contentions and argues that the Agency’s action should be reversed if she was harmed by the Agency’s failure to follow procedures and/or reinvestigated. In response, the Agency argues that Complainant has failed to raise any legitimate deficiency or additional evidence regarding the AJ’s decision. 4 Emails between Complainant and the AJ indicate that Complainant could file a complaint regarding her claims that were submitted but not granted for amendment in another case. The emails also instruct the Agency to consider the date Complainant filed the motions, July 21, 2016 and July 31, 2017, as the dates Complainant initiated contact with the EEO Counselor. 2020001168 6 It also asserts that Complainant alleges conspiracy theories and reasons and legal concepts without sufficient supporting analysis and fails to point to any basis of a legal error in the AJ’s decision. 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). 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Harassment Claim5 To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, 5 All of Complainant’s allegations as noted in her 62 claims have been considered in the overall harassment claim. 2020001168 7 Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, her race, sex, sexual orientation, or prior protected EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Some of Complainant's harassment allegations generally reflect her disagreements with managerial decisions or policy, including those relating to inputting information in the daily assignment roster, overtime procedures or assignments, performance evaluations, scheduling meetings or leave. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age). Some of Complainant’s allegations reflect general workplace disputes and petty annoyances that do not rise to the level of harassment. See Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). And, finally, to the extent that Complainant’s allegations reflect communications with supervisors that Complainant found displeasing or inappropriate, we find these allegations are insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). For these reasons, we find Complainant had failed to establish her claim of discriminatory harassment. We also note that Complainant indicated that Captain stated to her, “Hey [Complainant], you act like you can’t speak!” “You act like I slept in your bed last night!” “I’m not sleeping with you!” and “I’m not your Mama!” Complainant also alleged these comments were sexual in nature. We find these comments, while inappropriate, are not sufficiently severe or pervasive to have altered the conditions of Complainant’s employment. Therefore, we find that Complainant has failed to establish her claim of sexual harassment. Disparate Treatment Claims A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020001168 8 For a complainant to prevail, she must first establish a prima facie case 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Complainant’s allegations regarding the denial of overtime and/or payment for overtime and other time and attendance matters give rise to disparate treatment allegations.6 However, even if we assume that Complainant established a prima facie case of discrimination, her claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that the overtime roster computer program malfunctioned, and any impacted employees were subsequently paid for any overtime that the missed. Regarding her allegations of having been mandated to work, Warden explained that this is not against Agency policies. Although Complainant has alleged the Agency acted discriminately, she has failed to show by a preponderance of the evidence that the Agency acted on a prohibited basis. Therefore, we find she has failed to establish her claims of disparate treatment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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. 6 All of Complainant’s allegations of disparate treatment occurring within 45 days of her filing her motions to amend have been considered. See 29 C.F.R. § 1614.105(a)(1). 2020001168 9 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. 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. 2020001168 10 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 May 25, 2021 Date