[Redacted], Porter P., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 16, 2020

Appeal No. 2020003027 (E.E.O.C. Dec. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Porter P.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020003027 Hearing No. 510-2019-00062X Agency No. BOP-2018-0085 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 February 18, 2020, final order 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Correctional Treatment Specialist, GS-11, at the Agency’s Federal Correctional Complex (FCC) in Coleman Florida. On January 8, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him and subjected him to a hostile work environment based on race (Caucasian), national origin (Hispanic/Puerto Rican), sex (male), color (white), and age (46) when: 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. 2020003027 2 1. on September 8, 2017, the Warden separated the FCC Coleman Special Operations Response Team (SORT), used profanity, and pointed his finger in an aggressive manner toward the team members; and 2. on October 4, 2017, Complainant was suspended from the SORT for four months. Following the completion of the report of investigation and issuance of the notice of right to request a hearing before an EEOC Administrative Judge (AJ), Complainant timely requested a hearing. However, on October 28, 2019, the AJ issued a notice of intent to issue a decision without a hearing. After receiving responses from Complainant and the Agency, the AJ issued a decision by summary judgment in favor of the Agency. On February 18, 2020, the Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. While Complainant generally asserts on appeal that there were material facts in dispute, he has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 2020003027 3 Harassment (claim 1) To establish a claim of discriminatory environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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 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 a protected basis - in this case, his race, national origin, sex, and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Our review of the record indicates that the AJ properly determined that the Agency did not subject Complainant to discriminatory harassment as identified in claim 1. Complainant testified that his FCC Coleman SORT was dispatched to FDC Miami, Florida to restore the Federal Correctional Institution (FCI) Miami from any damage resulting from a pending storm. Complainant explained that the plan was for the FCC Coleman SORT to remain at the Federal Detention Center (FDC) Miami. However, Complainant indicated that management was concerned that the SORT would have a difficult time responding to needs at the FCI Miami while stationed at the FDC Miami because the FDC Miami was near the coastline and was susceptible to flooding. For this reason, Complainant stated that management re- assigned the FCC Coleman SORT to the FCI Miami Special Housing Unit. Complainant explained that his SORT objected to the FCI Miami Special Housing Unit assignment because the FCI was populated with inmates and needed to be disinfected and cleaned, and based on prior experience, the Special Housing Unit had not always been as clean as it should be. Complainant indicated that there were other places his SORT could be assigned. However, Complainant acknowledged that another team, the FCC Disturbance Control Team (DTC), did not object to being assigned to the FCI Miami Special Housing Unit. In response to Complainant’s SORT’s objection, Complainant explained that the Warden (African American,2 male, over 40) separated his SORT from another team, the Atlanta SORT which was predominately black and who also objected to the Special Housing Unit Assignment, and the Warden expressed his “discontent” about Complainant’s SORT requesting a different place to stay other than the Miami Special Housing Unit. 2 The Warden identified his national origin as “African/Native American.” 2020003027 4 Complainant explained that the Warden swung his finger in another team member’s face and stated that he was the “Goddam Warden of the Complex.” The Warden clarified that he addressed the FCC Coleman SORT on September 15, 2017 regarding its “unprofessional” behavior concerning their “alleged living condition at the FCI Miami during an emergency.” The Warden indicated that he wanted to speak to his team alone to understand what the issue was especially because the FCC Coleman’s DCT had already accepted the assignment to stay at the FCI and because Complainant and his SORT members had refused to go to the FCI Special Housing Unit before they had seen the conditions at the FCI. The Warden explained that he wanted to remind the FCC Coleman SORT that their behavior could be considered misconduct due to failure or delay in carrying out orders, work assignments, or instructions of superiors during emergency times. The Warden further explained that he also addressed the Atlanta SORT as well for their objection being assigned to the FCI Special Housing Unit. The Warden acknowledged that he informed Complainant and the rest of the FCC Coleman SORT that he was “disappointed in each and every one of [them].” The Warden further acknowledged that he was disappointed that the FCC Coleman SORT sided with the Atlanta SORT and refused orders during an emergency. The Warden also indicated that he was disappointed when the FCC Coleman SORT called the FCC Coleman’s DCT a “bunch of sell outs” when the DCT agreed to the living arrangement at FCI Miami. The Warden denied using profanity, he denied yelling, but admitted that he pointed his finger at them FCC Coleman SORT. A copy of a September 18, 2017 memorandum, the Complex Warden explained that Complainant and members of the FCC Coleman SORT refused to accept their assignment to live in the Special Housing Unit which housed inmates, even though the Special Housing Unit was being cleaned and sanitized prior to the SORT and DCT teams’ arrival. The Complex Warden indicated that Complainant and Complainant’s SORT members’ behavior was “in no way reflective of the mission of TDY staff during an emergency of FCC Coleman as a whole.” The Complex Warden noted that FCC Coleman members would be subsequently suspended for four months for their actions. Considering this claim, even if true, Complainant has not shown that his race, sex, national origin, and age motivated management’s actions toward Complainant. The record indicates that Complainant’s SORT as well as the Colemans DCT were assigned to the Special Housing Unit, but Complainant’s unit objected to this assignment. The record reflects that the Complex Warden addressed all the members of the SORT, including Complainant, because they refused to follow orders and did so before they had seen the living conditions at the Special Housing Unit. Even if we assume that the Complex Warden yelled at Complainant, used profanity, and pointed his finger, there is no indication in the record that the Complex Warden’s actions were attributed to Complainant’s protected bases. Rather, the record supports that the Complex Warden’s alleged actions were in response to what he perceived as insubordination by Complainant and the other SORT members. 2020003027 5 Beyond his bare assertions, there is no evidence that the disputed actions were motivated in any way by Complainant’s race, national origin, sex, and age. As such, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Disparate Treatment (claim 2) 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 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). 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 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. 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). Our review of the record indicates that the AJ correctly determined that the Agency articulated legitimate, non-discriminatory reasons for suspending Complainant. Several months after the incident identified in claim 1, Complainant testified that the Complex Captain notified him that he and the other FCC Coleman SORT members were suspended for four months because of their refusal to stay in another facility. The Complex Captain stated that he decided to charge Complainant, as well as the other FCC Coleman SORT members, with misconduct and for refusing to obey a supervisor’s instructions in an emergency situation. The Complex Captain noted that Complainant and his co-workers could have been fired for their insubordination, but they were suspended instead. The Complex Captain explained that the suspension was used as a tool for Complainant and his co-workers to think about their actions and the potential ramifications that result in situations where SORT members refuse orders. 2020003027 6 We note that the Warden acknowledged that he had spoken to the Atlanta SORT members for their refusal to be assigned to the FCI Miami Special Housing. The record indicates that the Warden served as a temporary supervisor for all teams at the FDC Miami up until the point of their assignment to the FCI Miami. Consequently, the Warden testified that he was unaware whether the Atlanta SORT members were disciplined because he did not work for the United States Penitentiary - Atlanta. The Warden asserted that he only addressed the misconduct he observed from his SORT members. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, national origin, sex, and age. CONCLUSION Complainant failed to prove that the Agency violated Title VII and the ADEA as alleged. The Agency's final order adopting the AJ’s decision without a hearing, finding no discrimination, is AFFIRMED. 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 2020003027 7 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. 2020003027 8 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 16, 2020 Date