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

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021000504 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Juli Z.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021000504 Agency No. BOP-2018-01113 DECISION On October 26, 2020, 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 29, 2020, final decision 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 Correctional Officer, GS-7, at the Agency’s Metropolitan Detention Center in Los Angeles, California. On October 10, 2018, Complainant filed an EEO complaint alleging that, from March through July 2018, she was subjected to harassment by her supervisor (S1) (male) based on her sex (female) and in reprisal for engaging in protected EEO activity, including after she reported his actions to upper-level management. 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 EEOC Administrative Judge (AJ). 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. 2021000504 2 The record does not show whether or not Complainant responded requesting a hearing but on appeal we note that Complainant has not claimed that she requested a hearing and was denied one. We therefore find that Complainant has waived her right to a hearing and that the Agency correctly issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency’s FAD, based on the evidence developed during the EEO investigation, concluded that Complainant failed to prove she was subjected to discrimination or unlawful retaliation as alleged. Specifically, the FAD found that the alleged actions were insufficiently severe or pervasive to constitute harassment in violation of Title VII. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Harassment Because of Sex During the investigation of her complaint, Complainant provided the following allegations in support of her claim of discriminatory hostile work environment harassment because of her sex. She alleged on or about March 12, 2018, after Complainant was relieved from her post in order to utilize her breast pump, S1 berated her in front of staff for doing so and stated that he would allow her to pump but that Complainant had to inform him personally and he had to grant approval first. She further asserted that, on May 27, 2018, S1 berated Complainant in front of another staff member regarding her job performance, speaking in a condescending and demeaning way. On July 22, 2018, Complainant said S1 looked at her up and down in an unacceptable and inappropriate manner. The following day, when she asked S1 if she could be relieved to pump breast milk, she said he told her “No," and stated that, "I'm going to wait until you are leaking." In considering whether any of the above actions, whether individually or collectively, constitute unlawful harassment, the Commission notes that in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a 2021000504 3 claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether Complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Even assuming the incidents comprising Complainant’s harassment claim occurred as she alleged, we conclude that the actions complained of are insufficiently severe and/or pervasive to have changed the terms and conditions of Complainant’s employment and hence did not rise to the level of a violation of Title VII. As Complainant’s supervisor, S1 had legitimate reasons to be informed before Complainant left her post to pump, as well as to speak to her about any job performance concerns. While she may have been offended by his tone of voice or the way he looked at her, this was not sufficiently severe to create a hostile work environment. S1’s comment to Complainant on July 23, 2018, if it occurred as alleged, was clearly inappropriate. However, this isolated incident (which occurred four months after Complainant was instructed to notify S1 when she left to pump - an everyday occurrence) is insufficient, without more, to establish a violation of Title VII. Moreover, the record shows that upper-level management counseled S1 about making inappropriate comments to Complainant. Disparate Treatment - Reprisal Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't 2021000504 4 of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of her protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). We first find that Complainant has met the first prong of the above test when she engaged in protected activity by complaining to management about S1 ogling and leering at her and making inappropriate comments. We next find that the Agency was aware of the activity because S1 was counseled for his behavior by the Captain, which is sufficient to meet prong two. However, with regard to prong three, we find that Complainant has not shown she was subjected to adverse treatment. We note that Complainant averred that: On July 30, 2018, after [S1] had already been spoken to by the Captain, Associate Warden and Warden for his previous behavior, he came onto my unit and proceeded to noticeably look for things to "retaliate" against me for reporting his prior actions. In one comer on the bottom rail by C range there was a pair of pants, a towel and two small rags used to wipe down the tables. These items were obstructed from my view by inmates who were sitting on the table between me and the items. [S1] called me into the unit office and demanded in a patronizing way that I get a trash bag and collect those items. He asked me in a very condescending and belittling way why those item [sic] were there. All of the railing in my unit was clear from clothing except that very small area that was again, obstructed from my view by from where I was at the time by inmates. [S1] then proceeded to tell me that I had minutes to come up with toilet paper for an inmate who asked him for some, otherwise I would need to do a mass shakedown of the unit. I was already in the process of obtaining this item for the inmate and informed [S1] of that. [He] reiterated that I had minutes to solve the issue showing a flex of his supervisory power. Next, food service workers returned 2021000504 5 from the kitchen and I opened the unit door and let them onto the unit. At this, [S1] screamed "What are you doing!?" and then ordered the food service inmates out of the unit and into the sallyport. [S1] then yelled at me in front of inmates, again, that I needed to pat search the inmates and why hadn't I done so? During all of this I had started to experience an amplified amount of anxiety on top of the anxiety that I was already experiencing from being around [him]. While Complainant clearly felt S1 was being overly critical on the day in question, there is no evidence that S1 fabricated or exaggerated the discrepancies found during the July 30, 2018 unit inspection. It is undisputed that deficiencies did exist, and it was his responsibility to identify them as part of his responsibilities for the operation and safety of the prison. While S1’s tone of voice may have been harsh on this occasion, the image that emerges from considering the totality of the record is that S1 was considered a difficult supervisor by many employees, including Complainant, long before Complainant engaged in protected activity. The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that S1 was motivated by retaliatory animus when he was critical of Complainant’s work performance on July 30, 2018. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that sex-based harassment sufficient to violate Title VII or reprisal occurred, and we AFFIRM the FAD. 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. 2021000504 6 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. 2021000504 7 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 16, 2022 Date