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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000532 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shawna R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020000532 Agency No. BOP-2017-0423 DECISION On October 1, 2019, 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 3, 2019 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Corrections Officer, GS-7, at the Agency’s Federal Correctional Institution Fort Dix at Joint Base McGuire- Dix-Lakehurst, New Jersey. On May 3, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), sexual orientation (gay), disability (Post Traumatic Stress Disorder (PTSD)), and reprisal for prior protected EEO activity (2016 EEO complaint) when: 1. between December 9, 2016 and March 25, 2017, she was subjected to hostile work environment harassment; 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. 2020000532 2 2. on April 6, 2017, an inmate told Complainant that staff was trying to set her up; 3. on May 11, 2017, Human Resources failed to provide Complainant with appropriate Family and Medical Leave Act (FMLA) information; and 4. on June 2, 2017, management failed to provide Complainant with a worker’s compensation form. The Agency accepted Complainant’s complaint for EEO investigation. During the EEO investigation, Complainant noted, in 2015, she was falsely accused of sexually assaulting an inmate, having inappropriate contact with an inmate’s family, and introducing contraband into the facility, and, in January 2015, she was reassigned to responding to telephone calls and emails. Complainant alleged, on December 9, 2016, a Corrections Counselor (CC), who is male, entered the officers’ station and made an inappropriate comment about female breasts to an Assistant Lieutenant, who is also male. Complainant stated that she exited the area and later informed the Warden, Special Investigative Staff, and a Special Investigative Agent of CC’s unprofessional conduct. Complainant alleged, on another occasion, when she came out of the facility’s unisex restroom, CC stated, “I did not see you coming out of the men’s room,” insinuating that she has male mannerisms. Complainant also alleged that CC attempted to unlock the restroom door while she was inside. Complainant stated that another male coworker (MC) asked her if she had a boyfriend, said he was going to take her on a date, and made a comment about getting a settlement check and spending it on all the “gays” at a bar in Florida. Complainant stated that she was unsure why MC made the comments to her, but she did not let him know it was unwelcomed at the time. Complainant stated, in April 2017, an inmate told her that a former inmate wrote a letter indicating that management and coworkers were trying to “set up” Complainant. Complainant stated that she felt personally unsafe and reported the matter to the Special Investigative Staff Office. She stated that management did not investigate the matter, and since then she has been diagnosed with PTSD. Complainant stated that she assumes her coworkers and managers know that she is gay based on how she dresses and her mannerisms. Further, Complainant felt that it was inappropriate for management to ask for medical certification to review her FMLA request. Also, Complainant stated that management did not inform her that a work-related injury allows for the use of workers’ compensation, so she requested FMLA instead. Complainant stated that she stopped going to work because she feared for her personal safety and the Agency would not address the concern related to the “set up” information provided by the inmate in April 2017. Complainant also alleged that the Agency treated her differently based on her protected classes. Complainant’s two male colleagues, CC and MC, denied making inappropriate comments to Complainant. They stated that they were aware of her race and sex but did not have knowledge of her disability, sexual orientation, or prior EEO activity. The Warden (W1) stated that no charges were substantiated against Complainant. Further, W1 stated that he was informed of Complainant’s harassment allegations and they were taken seriously. W1 stated that allegations of employee misconduct are reviewed and investigated. W1 also stated that Human Resources 2020000532 3 assisted Complainant with her concerns about her FMLA request and workers’ compensation claims. The Human Resources Manager (HRM) stated that she informed Complainant that she needed to submit documentation to support her FMLA request. HRM stated that she informed Complainant that she did not have to provide a diagnosis but had to provide enough information to show FMLA was appropriate. HRM stated that she provided Complainant a Department of Labor Certification of Health Care Provider for FMLA form to know what information was necessary. She stated that Complainant needed to show a need for, and the duration of leave requested. HRM stated that she informed Complainant that if she used leave without pay such that her health insurance premiums could not be deducted from her wages, she would receive a bill for health insurance from the National Finance Center. The Environment & Safety Compliance Administrator (ESCA) stated, in early June 2017, Complainant contacted his office about filing a PTSD-related claim. Complainant was informed that she could file a CA-2 (Notice of Occupational Disease and Claim for Compensation) form for chronic illness. ESCA stated that Agency employees are provided annual training on how to file an Office of Workers’ Compensation Programs (OWCP) claim. ESCA stated that OWCP originally denied Complainant’s June 12, 2017 claim for not having the employment-related factor, but then the claim was pending for additional medical information. 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) or an immediate final agency decision. 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 harassment or disparate treatment as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS Standard of Review 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 2020000532 4 To establish a claim of hostile 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, sex2, disability, or reprisal. Complainant alleged that a male coworker, CC, made an inappropriate comment about female breasts to an Assistant Lieutenant, in her presence. Complainant also alleged that CC insinuated that she had male mannerisms and tried to unlock a restroom door while she was inside. She also alleged that another male coworker, MC, asked her if she had a boyfriend, said he was going to take her on a date, and made a comment about getting a settlement check and spending it on all the “gays” at a bar in Florida. Complainant stated that she did not let the coworkers know the comments were unwelcome, but she later informed higher management of the unprofessional conduct. Complainant also alleged, in April 2017, an inmate informed her that a former inmate wrote a letter stating that management and colleagues were trying to set Complainant up. Complainant stated that the information from the inmate caused her to feel unsafe at work and triggered PTSD, for which she requested FMLA and later applied for OWCP. Complainant alleged that Human Resources failed to provide her appropriate FMLA request and OWCP claim information, and Human Resources requested too much information from her for her FMLA request. Management stated that Complainant’s allegations against her coworkers were taken seriously and reviewed. Management also stated that Human Resources assisted Complainant with her concerns about her FMLA request and ESCA assisted Complainant with her OWCP claim. HRM stated that she informed Complainant that she did not have to provide a diagnosis but had to provide enough information to show FMLA was appropriate. HRM stated that she provided Complainant a Department of Labor Certification of Health Care Provider for FMLA form to know what information was necessary. HRM also provided information to Complainant on how health insurance premiums would be billed if on leave without pay while on FMLA. 2 The Commission has held that claims of discrimination based on sexual orientation are valid claims of sex discrimination under Title VII and should be processed in the 29 C.F.R. Part 1614 EEO complaint process. Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015). See also, Bostock v. Clayton County, 140 S.Ct. 1731, 1741 - 1742 (2020). 2020000532 5 ESCA asserted that employees receive annual training on how to file OWCP claims, and that he provided Complainant OWCP information. He stated that OWCP initially denied Complainant’s claim for failure to contain the employment-related factor, but the matter returned to OWCP for further review. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. Disparate Treatment 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, he 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; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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, non-discriminatory 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). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on race, sex, disability, or reprisal, as articulated above, the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that Complainant failed to show that the Agency’s actions were based on discriminatory motives. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination. 2020000532 6 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). 2020000532 7 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 June 3, 2021 Date