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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003731 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003731 Agency No. BOP-2018-0567 DECISION 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 May 12, 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 period at issue, Complainant worked as a Correctional Treatment Specialist-Case Manager, GS 11 at the Agency’s Federal Correctional Institution (FCI) in Texarkana, Texas. On May 17, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on her sex (female) when, from March 8 to March 27, 2018, Complainant’s supervisor allegedly harassed, bullied, and intimidated her by yelling at her, by undermining her authority in the presence of inmates, and by making inappropriate comments. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) 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. 2020003731 2 It appears that Complainant did not respond to the notice. Therefore, on May 12, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of discriminatory 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, 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 sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The record reflects that the Agency properly determined that Complainant was not subjected to discriminatory harassment. Complainant testified that the Unit Manger (UM) was her first level supervisor from March 5, 2018 through April 30, 2018.2 Complainant noted that UM had just become her immediate supervisor, and she described several allegedly harassing incidents that occurred between her and the UM. Many of these incidents involved Complainant feeling as though the UM was questioning her day-to-day work decisions and actions. Specifically, Complainant explained that the UM questioned why a male co-worker (CW1) was in her office and informed Complainant that CW1 would need to visit during her lunch break. Complainant further explained that the UM responded, “Well, I’m getting jealous. I’m going to tell that guy the next time he comes back to see you, he needs to bring you flowers and candy.” Complainant asserted that that the comment made her feel “very uncomfortable” and was “inappropriate.” 2 The Unit Manager indicated that he supervised Complainant for four months beginning on March 5, 2018. 2020003731 3 On another occasion, Complainant explained that the UM questioned her on whether there was 24-hour open-door policy, when the UM noticed that an inmate was waiting outside of Complainant’s co-worker’s (CW2) office while Complainant and CW2 were having a conversation. Complainant indicated that she was unaware that the inmate was outside the office, as he had not made his presence known. Complainant further indicated that she informed the UM that there was no 24-hour open door policy. Rather, there were set hours for inmates to meet. Complainant further mentioned instances where the UM confronted her about inmate concerns without first seeking information from Complainant. Consequently, Complainant indicated that it was as though the UM had already made up his mind when he approached her about inmate related issues, and she did not appreciate when the UM would address these issues in the presence of inmates. Specifically, Complainant noted that one inmate complained that she did not clear him to go to a halfway house because he had an, outstanding debt. In another instance, the UM questioned the custody classification score Complainant gave an inmate. Thereafter, Complainant explained that the UM notified her of his philosophy on how to score inmates which Complainant acknowledged was different from the current policy. Complainant also felt that the UM mocked her on one occasion when he noted that a door was open which was previously kept closed due to mold. Complainant explained that she had previously informed the UM when he first arrived why they kept the door closed. However, after maintenance corrected the issue, the UM said, according to Complainant, in a high-pitched voice, “oh, well I thought it was mold in there and it stinks in there. We keep the door shut.” When the UM decided to remove the filing cabinets out of case manager offices and place them in a central location, Complainant stated that she believed that the UM made this decision to “inconvenience” the case managers as “payback” when she decided to relocate her office away from the UM. Complainant acknowledged that she did not believe that management would take any actions to correct the UM’s behavior, so she voluntarily moved to a satellite camp next door. Complainant explained that there was a vacancy announcement email soliciting volunteers to move the camp next door, Complainant volunteered, and she was moved to the new location and received a different supervisor. The record indicates that Complainant notified the Warden of these incidents, via email, on March 27, 2018, and a threat assessment was completed on March 29, 2018. The results of the threat assessment determined “no physical threat of violence.” Considering these claims, even if true, Complainant has not produced evidence that considerations of her sex motivated management’s actions toward Complainant. The UM explained that he was new to his unit and was trying to “get a handle” on how things operated especially in light of hearing complaints from inmates having to wait to speak to a case manager despite having an open-door policy. Consequently, the UM stated that on his rounds, he noticed that CW1 was always in the Complainant’s office. 2020003731 4 The UM stated that when he wanted to correct Complainant on this issue, and he attempted to “lighten” the situation and jokingly made the comment about being jealous and CW1 bringing Complainant flowers and candy. We note that the comment was an isolated incident which is not usually not sufficiently severe or pervasive enough to constitute discriminatory harassment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996); Banks v. Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995). Regarding an inmate waiting to be seen, the UM stated that the inmate informed him that he had been waiting on Complainant and CW2, and after waiting twenty-five minutes to assess the situation, the UM stated that he knocked on the door and asked Complainant and CW2 if they realized that the inmate was waiting to be seen. The UM acknowledged that he spoke to Complainant about the matter and he addressed the matter based on his own observations. With respect to the inmate scores, the UM explained that he had been informed that some case managers would rank inmates “average” instead of “good” to avoid having to complete additional work (i.e. lesser security transfer). The UM stated that he insisted that case managers accurately evaluate the inmates. Regarding centralizing the case files, the record reflects that the UM had the authority, by nature of his position, to centralize all files because he was responsible for inmate files assigned to his unit. Additionally, the UM acknowledged that he had never worked at an institution where the files were all spread out. The UM acknowledged that he assigned Complainant to complete True Links approvals. Contrary to Complainant’s testimony, the UM explained that this assignment was part of Complainant’s duties as a case manager even though prior to his arrival case managers did not perform these duties at this facility. The UM denied mocking Complainant when he made a comment about the open door. The UM indicated that he was the person who ensured that the person responsible for getting maintenance to clean the room. Overall, the record supports that Complainant disagreed with many of the UM’s managerial decisions. Additionally, the record also indicates that the UM was a new manager and Complainant and other employees did not like the UM. Specifically, the record includes complaints from staff regarding the UM’s management style, however, none of these complaints indicate that the UM’s actions were based on the employee’s sex. The complaints were authored by male and female employees. Additionally, the UM indicated that during a dress down day, Complainant and her co-workers all wore the same shirt stating “Bubba Team” as an homage to their prior Unit Manager who had a barbeque team called Bubba. 2020003731 5 The image which emerges from considering the totality of the record is that there were conflicts and tensions with the UM’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks 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, beyond her bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s sex. Her claim of harassment is precluded based on our findings that Complainant failed to establish that any of the disputed actions were motivated by her sex. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020003731 6 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. The court has the sole discretion to grant or deny these types of requests. 2020003731 7 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 22, 2021 Date