[Redacted], Marguerita D., 1 Complainant,v.Merrick B. Garland, Attorney General, U.S. Department of Justice, Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2020004405 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerita D.,1 Complainant, v. Merrick B. Garland, Attorney General, U.S. Department of Justice, Agency. Appeal No. 2020004405 Agency No. BOP-2019-0415 DECISION On July 30, 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 June 30, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant was a Vocational Trade Instructor, GS-1712-11, at the Agency’s U.S. Penitentiary in Atwater, California. On June 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), parental status (parent)2, and in reprisal for prior protected EEO activity when, on April 10, 2019, her supervisor requested a doctor's note due to the utilization of leave from a work-place injury. 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 Commission does not have jurisdiction over claims of parental status discrimination. Moran v. Dep't of Veterans Affairs, EEOC Appeal No. 01A10499 (Oct. 8, 2002). Accordingly, we will not address parental status as a basis herein. 2020004405 2 Complainant averred that she was the only African-American woman in her unit. Report of Investigation (ROI), p. 87. She reported to the Supervisor of Education (S1) (Hispanic female, no prior EEO activity, married with children). Her second-level supervisor was the Associate Warden (S2) (Caucasian female, no prior EEO activity). Her third-level supervisor was the Acting Warden (S3) (White male, prior EEO). On April 9, 2019, Complainant requested to extend her LWOP to June 1, 2019, via an email, which she copied to the Human Resources Manager and the Union President. Report of Investigation (ROI), pp. 84, 86. In her request, she attached two notes from her doctor, that stated she would be out through June 1, 2019. At the time of the incident, Complainant was not at work and had been on approved leave after she had sustained a work injury on October 2, 2018. On April 10, 2019, S1 sent Complainant an email in which she asked Complainant to obtain a doctor’s prognosis and diagnosis of her medical condition and to send that to S1, but S1 denied that she asked for the information via email. Complainant questioned the supervisor’s request as to the reasons why she was requesting medical documentation. Complainant stated that this was not the normal protocol as management had granted her previous requests to extend her leave without the submission of any additional medical documentation. S1 told Complainant that the Region had requested the information. ROI, p. 173. After Complainant asked additional questions, S1 referred Complainant to S3 for further information.3 S3 told Complainant that no one in the Regional Office was requesting additional information and he did not know why S1 was requesting the information. S3 also told her that he would approve her request to extend her LWOP without submitting additional documentation. S3 stated that he believed this had been a miscommunication issue. According to Complainant, Complainant’s request to extend LWOP was subsequently approved. Complainant expressed her belief that her supervisor had committed a violation of the Health Information Portability and Accountability Act (HIPAA).4 ROI, p. 84. Complainant stated her doctor already provided a note stating she should be out of work. Complainant did not understand why that was not good enough. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. This appeal followed. 3 The record shows that S2 was on leave from April 8, 2019 to April 12, 2019. ROI, p. 103. 4 The Commission does not have jurisdiction over HIPAA claims. HIPAA is enforced by the Department of Health and Human Services. 2020004405 3 CONTENTIONS ON APPEAL On appeal, Complainant argues that S1 intentionally lied when she said that the Region had requested additional information. Further, Complainant objected to the Agency’s reasoning that sex discrimination was not shown because two of the named officials were women. She raised an additional claim that S1 discriminated against her when she provided false information that caused Complainant’s health insurance to be cancelled and caused the Agency to stop computing her payroll, after pay period 7, as of April 13, 2019. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). Disparate Treatment Section 717 of Title VII requires that federal agencies make all personnel actions free of race, color, or sex discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color or sex”). Reprisal is also unlawful under Title VII. 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). For 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. 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, Agency management officials have articulated legitimate, nondiscriminatory reasons for their actions. 2020004405 4 The Agency conceded that it was possible that S1 misunderstood or misapplied the relevant Agency policies and that the record shows that S1’s request was subsequently and quickly rescinded. Complainant failed to show that S1’s request for additional information caused her tangible harm. The same day S1 made the request, Complainant agreed that the Acting Warden granted Complainant’s request to continue on Leave without Pay status without requiring any additional documentation. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. In this complaint, Complainant provides no evidence tending to demonstrate the proffered reasons are pretext for discrimination or reprisal. A mistake, without more, does not establish discriminatory or retaliatory animus. See Calvin D. v. Dep't of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018); Velda F. v. Dep't of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018). Accordingly, based on the evidentiary record before us, we find that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Finally, to the extent Complainant asserts that the incident at issue amounted to unlawful harassment, we find that a finding of a hostile work environment is precluded due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000).5 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. 5 We note that Complainant appears to seek to raise new claims on appeal. To the extent that Complainant wishes to pursue new claims regarding actions that occurred subsequent to the incident at issue, she should bring those claims to the attention of an EEO counselor because those claims are not properly before us for review. 2020004405 5 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. 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). 2020004405 6 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 December 2, 2021 Date