[Redacted], Zena C., 1 Complainant,v.Merrick B. Garland, Attorney General, U.S. Department of Justice (DOJ Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 6, 2021

Appeal No. 2020004376 (E.E.O.C. Dec. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zena C.,1 Complainant, v. Merrick B. Garland, Attorney General, U.S. Department of Justice (DOJ Bureau of Prisons), Agency. Appeal No. 2020004376 Hearing No. 410-2018-00271X Agency No. BOP-2016-0691 DECISION On July 29, 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 June 30, 2020 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-09, at the Agency’s United States Penitentiary in Atlanta, Georgia. On June 1, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of reprisal as evidenced by multiple incidents, including: 1. On March 30, 2016, Complainant’s second-level supervisor (S2) assaulted Complainant when she pulled on Complainant’s wig; 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. 2020004376 2 2. On April 4, 2016, S2 interfered with her work performance; 3. Her office location was changed; 4. Other staff were given preferential treatment; 5. Time and Attendance Handbooks were removed from her workstation; 6. Management demanded a doctor’s note regarding her requesting sick leave; 7. She did not receive a cash award; and 8. Management did not properly address her harassment allegations. On or about March 15, 2016, Complainant and other employees met with the Associate Warden to discuss claimed harassment actions by S2 that were directed against a co-worker. Complainant offered her testimony in support of the coworker. During the session, Complainant also criticized S2’s management performance. The alleged retaliatory actions at issue occurred subsequent to the March 15, 2016 meeting. Claims 1 and 8 - Assault and Investigation On March 30, 2016, S2 sat behind Complainant at a conference and Complainant alleged that she tugged at Complainant’s wig. S2 denied intentionally pulling Complainant’s wig and explained that she was attempting to remove a piece of string or a strand of hair from Complainant’s shoulder. That piece of string was connected to Complainant’s wig. Complainant reported the matter and the incident was investigated by the Office of Internal Affairs. Following the investigation, the Warden instructed S2 to cease and desist from any similar conduct and S2 was subsequently removed from serving as a supervisor to Complainant. The Warden denied that any staff member was given preferential treatment regarding management’s response to allegations against S2 noting that management referred Complainant’s allegation immediately for investigation and to the Threat Assessment Committee. Claims 2 to 5 - Work Interference Complainant averred that she was not provided the assignments in a manner that she could complete in a timely manner and she was being overworked. Complainant’s supervisor (S1) stated that the office experienced staff shortages and a high volume of work at the time. S1 noted that S2 interfered with other Specialists’ work, including her own, and she encouraged Complainant to complete the assignments to avoid any issues with S2. Complainant’s office location was changed to the Training Building and then she was relocated back to her office. Management officials stated that Complainant and other Human Resource Specialists were occasionally assigned to the Training Building and it was considered the same as working in the Human Resource Department because while there, they were allowed to perform their normal assigned duties. Complainant’s supervisor (S1) recalled that Complainant wanted to work out of the Training Building and that she would oversee the new hire training classes while there. 2020004376 3 Complainant claimed that S2 borrowed her Time and Attendance Handbooks to make copies and never returned them. The record shows that her Time and Attendance Handbooks eventually ended up on the desk of another Specialist, which Complainant attributed to the retaliatory actions of S2. The Specialist said that Complainant informed her that the handbooks were hers and she took them with her. Claim 6 - Sick Leave Request Complainant requested sick leave from July 1, 2016 to July 25, 2016. Her request was initially disapproved because Complainant did not follow proper leave procedures and did not have sufficient sick leave hours available. Management held discussions with Complainant regarding alternatives and granted part-sick leave and part-annual leave to cover her absence. Claim 7 - Cash Award The record shows that most staff received a cash award. Complainant and one other Specialist received a time-off award. There was no evidence that the other employee, who received the time-off award, had engaged in prior EEO activity. The Warden explained that Complainant’s performance did not rise to level of a Special Act award as her work outcomes because, while she had made strides in performing her tasks, her work outcomes were not extraordinary and were part of her normal duties inherent in her position as an HR Specialist. The Warden further noted that she lowered the amounts awarded for each HR Specialist than what was requested. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to reprisal as alleged. In the decision the AJ reasoned that Complainant failed to show that any of the alleged conduct was based on retaliatory animus. Complainant pointed to a complaint she filed in 2015 against management at another facility and the March 15, 2016 meeting with the Associate Warden as her protected EEO activity. The AJ determined that Complainant offered only unsupported allegations and speculation to show that her previous EEO complaint motivated management to take the actions alleged in this case. Furthermore, Complainant did not even allege that she connected any of S2’s actions to anyone's membership in a protected class at the March 15, 2016 meeting. While there was evidence that S2 may have been motivated by criticisms Complainant raised in the March 2016 “whistleblowing” meeting with the Associate Warden, this meeting did not constitute protected EEO activity. Thus, the AJ found that Complainant could not establish that any of the incidents alleged were motivated by animus toward Complainant’s prior protected EEO activity. As a result, the AJ found that Complainant was not subjected to reprisal or a retaliatory hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. 2020004376 4 CONTENTIONS ON APPEAL On appeal, Complainant renewed her claim that she should have been protected when she assisted in providing information about the harassment of her coworker. Complainant further asserts that management knew about her previous EEO complaint and that the AJ overlooked a variety of material facts that were in dispute and ignored the conflicting stories from the Agency. She said the AJ showed favoritism to the Agency and did not ensure the Agency followed the EEO MD-110 guidelines. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS As an initial matter, the Commission will address Complainant’s contentions on appeal that the AJ exhibited favoritism and committed other errors against her. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed all documentary evidence in the record and is unable to find evidence of bias, or other reversible error, resulting from the manner in which the AJ managed and adjudicated this case. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. 2020004376 5 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2020004376 6 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 December 6, 2021 Date