[Redacted], Mellissa F.,1 Complainant,v.XXX, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 7, 2021

Appeal No. 2019005660 (E.E.O.C. Apr. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mellissa F.,1 Complainant, v. XXX, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2019005660 Agency No. BOP-2017-0233 DECISION On September 10, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 31, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as an Education Technician at the United States Penitentiary in Beaumont, TX. On March 30, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her on the bases of race (African-American), disability, and in reprisal for prior EEO activity (prior EEO activity) when: 1. on November 9, 2016, management gave her a counseling letter; 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 2019005660 2. on December 13, 2016, management conducted a threat assessment of her, and subsequently gave her a Cease and Desist letter; 3. on January 17, 2017, managers sent her home because she was using a scooter; and 4. managers lowered her evaluations. Following an investigation, Complainant initially requested a hearing before an EEOC Administrative Judge (AJ). Complainant, however, thereafter withdrew the hearing request. On January 31, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Denial of Reasonable Accommodation: Claim 3 Under the Rehabilitation Act and the Commission’s implementing regulations, a federal agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Complainant identified her disabilities as impairments of the right foot and back. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. Complainant alleged that on January 17, 2017, managers sent her home because she was using a scooter when she reported to work. The Assistant Supervisor (AS) (African-American) confirmed that Complainant was initially sent home. He stated that he observed Complainant on her scooter and stated that he had “not…been provided with any medical documentation or anything at that time to determine what accommodations we could possibly make, if we could, because this was not a work-related injury.” He noted that Complainant’s injury occurred off duty. The AS further stated, “we’re in a high-security level institution…we’re Law Enforcement Officers, so we respond on a daily basis to emergencies. I had nothing in place for [Complainant] at that time. And so, we needed to assess whether or not it was viable and safe for her to be in the institution. Furthermore, the AS stated that Complainant returned to the facility on a temporary job modification assignment. The Associate Warden (AW) (Caucasian) stated that as of January 17, 2017, Complainant had not requested any type of job modification and management was not aware of Complainant’s medical restrictions. Furthermore, the AW stated that Complainant was eventually given a temporary job modification that allowed her to use a scooter at the USP Beaumont. 3 2019005660 Based on this evidence, we concur with the Agency’s conclusion that there is no indication that the Agency violated the Rehabilitation Act by failing to provide Complainant with a reasonable accommodation for her known medical condition. The Agency’s request for medical documentation to support the accommodation request was reasonable under the circumstances. Disparate Treatment: Claims 1 - 2 and 4 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on November 9, 2016, management gave her a counseling letter. The Supervisor of Education (African-American) stated that, during the relevant period, she was Complainant’s first-line supervisor and issued Complainant the counseling letter because of Complainant’s delay in carrying out work assignments and failure to follow assigned instructions on November 9 and 10, 2016. Specifically, the supervisor noted that on November 9, 2016, Complainant was directed to leave the Employee’s Club Booth at the Health Fair located at the Staff Training Center and to report to the Education Department in approximately one and one- half hours. However, Complainant neither reported to the Education Department nor did she advise her supervisor for the reason for failure to report on that day. The supervisor noted that the next day, November 10, 2016, she requested an explanation from Complainant for not following instructions the prior day. Complainant claimed that there were only two Employee’s Club members assigned to work the Health Fair and that it was too busy to leave the other member alone. In addition, the supervisor noted that on the same day, November 10, 2016, she was having a private conversation with an Education staff member in her office in which she approved the staff member’s request to have the inmates clean her office and Complainant interrupted her and claimed that the inmates cannot clean her office floor. 4 2019005660 Thereafter, the supervisor asked the staff member to leave and addressed Complainant’s intrusion of a private conversation. She told Complainant that as her supervisor, she expects her to carry out work assignments and instructions given by her. Regarding claim 2, Complainant alleged that on December 13, 2016, management conducted a threat assessment of her, and subsequently gave her a Cease and Desist letter. The supervisor stated that on December 16, 2016, she issued Complainant a Cease and Desist Notification for unprofessional behavior. Specifically, the supervisor stated that on December 13, 2016, Complainant was involved in an incident involving a teacher, relating to a confrontation over broken glass at the worksite, and whose responsibility it was to clean the glass up. On December 13, 2016, the Threat Assessment Committee convened and determined that Complainant should be issued a Cease and Desist Notification. Specifically, the committee determined that Complainant should refrain from having any negative or confrontational communication between herself and the teacher. Regarding claim 4, Complainant claimed that managers lowered her evaluations. However, the AS stated Complainant received a rating of “Excellent” in all rated areas on her 2016-2017 annual evaluations, including on her communication element. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Harassment Finally, to the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, 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 her protected basis - in this case, her race, disability and/or 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 her claim that her treatment was the result of her race, disability and/or prior protected activity. 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 her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 0119982923 (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. 5 2019005660 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). 6 2019005660 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 April 7, 2021 Date