[Redacted], Wilfred M., 1 Complainant,v.Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2021001443 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilfred M.,1 Complainant, v. Monty Wilkinson, Acting Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2021001443 Hearing No. 480-2020-00251X Agency No. BOP-2019-0519 DECISION On November 3, 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 October 6, 2020, final order concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Lieutenant, GS-11, at the Agency’s Bureau of Prisons, Metropolitan Detention Center, Custody Department facility in Loa Angeles, California. On April 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (51), and reprisal for prior protected EEO activity 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. 2021001443 2 1. on February 28, 2019, Complainant’s supervisor (S: Pacific Islander, male, 53 years old) issued him a sick-leave abuse letter that threatened Complainant with being charged with being Absent Without Official Leave (AWOL) if medical documentation did not accompany any sick leave requests for the following three- month period; 2. on April 22, 2019, Complainant was issued a negative log entry for failure to report, following an incident involving another supervisor on a different shift; and 3. on April 22, 2019, S issued Complainant an unfavorable yearly performance evaluation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a decision by summary judgment on September 3, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. 2021001443 3 While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to point 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. Where, as here, Complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that Complainant established his prima facie case of discrimination. However, we concur with the Agency that during the investigation into the complaint, Agency officials articulated legitimate, nondiscriminatory reasons for their actions. The February 28, 2019 sick leave abuse letter to Complainant stated: This letter constitutes a sick leave restriction letter based upon a pattern of sick leave usage taken in conjunction with your scheduled days off over a seven [sic] month prior. Specifically, you have taken eight days of sick leave in conjunction with your scheduled days off beginning August 1, 2018 through February 22, 2019. I have determined your pattern of sick leave usage is unacceptable. Upon issuance of this letter, sick leave will not be approved unless you provide me with a medical certification. For sick leave used, you are required to provide a signed, written statement from your medical provider attesting to your incapacity for work in your job category and giving the expected length of incapacitation. I will continue to require medical certification from you, for all sick leave used, for a period of three months beginning on the date you receive this letter. At the conclusion of this three- month period, a written determination of whether to continue this requirement will 2021001443 4 be made. If you do not provide this information upon your return to duty from sick leave, you will be charged Absent Without Leave (AWOL). Further, you may also be subject to disciplinary action. The April 22, 2019 negative log entry stated: Specifically, On March 21, 2019, as you arrived for your shift as Operations Lieutenant you responded to a possible physical altercation on 6-South. Upon your arrival to 6-South the inmate was in the Sallyport area where he was pat searched and placed in hand restraints. The inmate appeared to be under the influence of narcotics. The inmate became uncooperative, pulling away from staff. At this time, the inmate was place on the ground in order for staff to gain control of the inmate. You [sic] failure to report the Use of Force used during this incident, complete the 583, debriefing of incident and medical assessment were not completed on video. Your failure to report and complete the required documentations, 583 and video has resulted MDC Los Angeles, reporting a Use Force within the required timelines as required by Use of Force and Application of Restraints. With regard to Complainant’s unfavorable yearly evaluation, in which he received a rating of “achieved results”, S averred that Complainant “received an appropriate annual rating for his work effort.” The Agency having articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we concur with the AJ that Complainant has failed to meet this burden. With regard to the sick leave abuse letter, Complainant averred that: I got into a car accident on July 31, 2018, where the guy messed up my car pretty bad. And I was going back and forth to the doctor. I provided the Captain with several doctor’s notes letting him know that I had got into a car accident. So he was aware of this. So because I was in pain with my neck and my back and my shoulder, I was going to the doctor and sometimes I . . . I was in so much pain I couldn’t, I had to take off. So even though he was aware of this, he still determined that I was abusing sick leave. We note that such a response does not address the Agency’s articulated reason that the letter was issued for Complainant’s use of sick leave in conjunction with his scheduled days off. Complainant identified two white male coworkers and two white female coworkers who he maintained also took sick leave in conjunction with their days off but never received a sick leave abuse letter. We note, however, that Complainant did not indicate whether these comparators held the same position as Complainant and worked under the same supervisor and were thus similarly situated. 2021001443 5 Complainant further averred that the only two employees to receive such a sick leave abuse letter were himself and another black male employee. However, the Agency presented copies of two similar letters submitted to two male employees, one black and one white, in the months following Complainant’s receipt of his letter. With regard to the negative log entry, Complainant averred that on the date in question he showed up early for his shift and while receiving a briefing from the person he was relieving (CW: male, race and age not provided): An incident occurred and [CW] had to respond. . . . he [CW] had no Activity Lieutenant, he was by himself. So while being by himself, he took off to go to respond to an incident. I went with him to ensure that, you know, everything worked out okay, he didn’t have issues. So I (inaudible) going, going with him to the (inaudible). Once I saw he had it under control, I, before I entered the scene, I observed the two officers take the inmate down. We, we call that a use of force. So I go back and begin to start preparing myself to run my shift, which was 9:00 p.m. to 5:00 a.m. in the morning. So I’m beginning to start myself together, and so when it comes time to get back to the office, I said, “Hey, man, you know that was that was immediate use of force, right?” He tells me, “Don’t worry about it.” He already discussed it with [the Acting Captain (AC: male, Hispanic, 48 years). Complainant further averred that he told S about the incident later that day and S said nothing about it, but that a month later S issued him a negative log entry for his failure to follow the proper procedures regarding reporting use of force. I said, “Captain, how I’m going to have a (inaudible) report when [CW] states in his memo that he notified [AC]? . . . So CW notified the proper, proper authority. “(Inaudible), you didn’t do it.” I said, “Captain, it wasn't my shift. It was [CW’s] shift. He’s responsible for that, not me.” S, however, averred that Complainant should still have followed the proper reporting procedures because “he was involved in the incident.” We note that Complainant has not shown that other, similarly situated coworkers were treated differently with regard to the procedures they were required to follow in reporting use of force occurring in their presence. Finally, with regard to Complainant’s yearly evaluation, when asked why he believed he deserved an evaluation of “Outstanding” Complainant stated that: I do audits. I’ve been part of the operational review team. I’ve been part of the ACA team. These are not my tasks. These are tasks that attach to the Captain that will help him get promoted. But I’ve been integral part of the team and ensure that they get these rating to, to, so they can get promoted. I.e., example, AW, Associate Warden [name omitted], he, he got promoted from Captain to AW because a lot of the work that I did to help him to complete the ACA, his operational review, his 2021001443 6 program review. And so he was able to get, obtain a good and [sic] he was able to promote out of there. Which, and I said I don’t mind helping out, but at the end of the day, they didn’t want, it’s like they, they, like they wanted to downgrade my evals. Such an argument does not establish that Complainant’s evaluation was discriminatory. We note in this regard that Complainant has not shown that Agency officials harbored any discriminatory animus towards Complainant’s protected bases. Furthermore, while Complainant disagrees with the Agency’s actions, he has not met his burden of establishing that the Agency’s articulated reasons for its actions are pretextual. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination or reprisal occurred, and we AFFIRM the final order. 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. 2021001443 7 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. 2021001443 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 February 9, 2021 Date