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

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003532 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddie K.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003532 Agency No. BOP-2019-0555 DECISION On May 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 19, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 relevant time, Complainant worked as a Correctional Officer, GS-07, at the Agency’s Federal Correctional Complex (FCC) Coleman in Coleman, Florida.2 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 The record reflects that Complainant retired from Agency employment effective September 14, 2019. 2020003532 2 On May 24, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), parental status (single father)3 and reprisal for prior EEO activity when: 1. On April 11, 2019, management placed him on Absent Without Official Leave status despite requesting Leave Without Official Pay status; and 2. On May 22, 2019, he was suspended for three (3) calendar days for not working overtime. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 15, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.4 The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. 3 With respect to Complainant’s parental status as a basis, the Agency properly dismissed this allegation as not being a covered basis of discrimination under Title VII and the EEO regulations. 2020003532 3 Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 1, Complainant asserted that on April 11, 2019, management placed him on Absent Without Official Leave although he had requested Leave Without Official Pay status. The Lieutenant (Caucasian, male) is one of Complainant’s first-line supervisors. He stated that he does not recall Complainant being placed on Absence Without Leave (AWOL) on April 11, 2019. However, he attested that Complainant was placed on AWOL on several other occasions. Specifically, the Lieutenant recalled Complainant was placed on AWOL because he claimed he was at a certain location which was later discovered not to be true. Regarding claim 2, Complainant alleged that on May 22, 2019, he was suspended for three (3) calendar days for not working overtime. The record contains a copy the Proposed 10-Day Suspension dated March 8, 2019, issued by the Deputy Captain.5 Therein, the Deputy Captain placed Complainant on notice that he was proposing a ten-day suspension for Failure to Follow Supervisor’s Instructions, AWOL, and Failure to Follow Leave Procedures. Specifically, the Deputy Captain noted that on May 16, 2018, Complainant departed the FCC Coleman facility prior to the end of his shift without notifying his supervisor. In his affidavit, Complainant acknowledged he did not receive permission from his supervisor to leave work early on September 26, 2018. In addition, the Deputy Captain’s notice stated that on May 16, 2018, Complainant was scheduled to work from 7:30 a.m. to 4:00 p.m., but he left the institution at approximately 3:15 p.m. The notice also indicated that on August 27, 2018, Complainant was scheduled to work from 7:30 a.m. to 4:00 p.m. but he did not arrive to work until 8:00 a.m. In addition, on September 13, 2018, Complainant was scheduled to work from 7:30 a.m. to 4:00 p.m., but he left the institution at approximately 3:26 p.m. The Complex Warden (African/Native American, male) averred that on May 21, 2019, he received Complainant’s oral response to the proposed suspension, and Complainant admitted the charges were accurate and that he accepted the responsibilities of his actions. The Complex Warden stated that after a thorough review of the evidence, he determined that a suspension of three calendar days would have the desired corrective effect. He stated that Complainant would be suspended effective May 27, 2019 through May 29, 2019. Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management for the disputed actions were a pretext designed to mask discriminatory or retaliatory motives. 5 The record does not contain also contain an affidavit from the Deputy Captain. Therefore, we will only consider what was written in the notice of proposed suspension. 2020003532 4 There is simply no evidence to support a finding that Complainant’s race, sex or unlawful retaliatory animus played any role whatsoever in the disputed matters. Harassment/Hostile Work Environment To the extent he claimed the AWOL matter and the suspension created a discriminatory hostile work environment for him, Complainant must establish that he 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 his protected bases - in this case, his race, sex and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support his claim that his treatment was the result of his race, sex or prior EEO complaint. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.6 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. 4 On appeal, Complainant does not challenge the September 20, 2019 partial dismissal issued by the Agency regarding two other claims. Therefore, we have not addressed these issues in our decision. 2020003532 5 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. 2020003532 6 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 November 4, 2021 Date