Ricky S.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 9, 2018

0120162536 (E.E.O.C. Aug. 9, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Ricky S.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 0120162536

Agency No. BOP-2014-01239

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the June 24, 2016 final Agency decision (FAD) 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physician Assistant,
GS-0603-11, at the Agency’s Federal Correctional Institution-Schuylkill facility in Minersville,
Pennsylvania. Complainant entered duty with the Agency on March 24, 2014, and worked under
a one-year probationary period. Complainant claimed that around May 2014, a co-worker (CW-
1) stated to him while in the office of another co-worker (CW-2), “Just don’t sleep with the
inmates!” Complainant alleged that CW-1 made the same comment on another occasion in June
2014. Complainant claimed that his second-level supervisor (S2) was present and did nothing in
response to the comment. In addition, Complainant alleged that another co-worker (CW-3)
approached him aggressively, pointed his finger in Complainant’s face, and stated “I hate
fucking faggots and I hate President Obama.” Prior to the comment, Complainant claimed that

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.
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he heard CW-3 and other correctional officers discussing their disapproval of President Obama
designating June as National LGBT Pride Month and making derogatory comments about gay
people. Complainant stated that he felt unsafe with his co-workers and supervisors based on
their conduct and management’s implicit approval. Complainant further claimed that he feared
that the inmates would learn of his sexual orientation from his co-workers and felt he was in
danger of sexual assault or physical harm by the inmates.

Additionally, Complainant alleged that correctional officers delayed releasing him through the
Sally Port2 upon leaving the segregation unit. Complainant believed that the correctional
officers acted with the intent to “delay, annoy, harass, frighten, and humiliate” him. Further,
Complainant alleged that a correctional officer ignored his requests to bring an inmate in need of
medical services to Health Services. Complainant claimed that he told S2 about these incidents
in June or July 2014. Complainant stated that his co-workers made it difficult for him to check
in on the morning of July 3, 2014. On July 3, 2014, Complainant submitted a handwritten note
stating that “for personal reasons I submit my resignation effective 4:00 p.m.”

On February 25, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the basis of sex
(male, sexual orientation) when on July 3, 2014, as a result of being subjected to sexually
inappropriate and offensive comments, he submitted his resignation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). The Agency subsequently issued a FAD on June 24, 2016.3

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on Complainant’s protected classes. The Agency
noted that there was no corroborating evidence supporting Complainant’s allegations.
Complainant alleged that his co-workers harassed him with offensive and derogatory comments
based on his sexual orientation; however, none of the witnesses nor management officials heard
any of the comments alleged. In addition, several witnesses stated they were not aware of
Complainant’s sexual orientation.

In addition, Complainant alleged that his co-workers would not release him from the Sally Port
in a reasonable time or deliver an inmate needing medical attention to Health Services. S2 stated
that Complainant informed him that he was caught in the Sally Port one morning and S2 offered

2 According to the Merriam-Webster dictionary, a sally port is “a secure entryway (as at a prison)
that consists of a series of doors or gates.” https://www.merriam-
webster.com/dictionary/sally%20port
3 It is not clear from the record if Complainant requested a final decision, or if the Agency issued
a final decision after no response from Complainant. Nonetheless, Complainant did not
challenge the Agency’s issuance of the FAD on appeal.
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S2 affirmed that Complainant declined his offer and adamantly said that he would handle the
matter himself. Complainant alleged that his first-level supervisor (S1) harassed him by
requesting a job posting of Complainant’s position before Complainant left the facility on his last
day. The Agency found that there was no evidence that any of these incidents were based on
Complainant’s protected classes. Further, other than the Sally Port incident, there was no
evidence that Complainant reported any of the alleged incidents to management. Accordingly,
the Agency found that Complainant had not been subjected to a discriminatory hostile work
environment.

In addition, as Complainant failed to show that he was subjected to severe or pervasive
discriminatory harassment that created a hostile work environment, the evidence did not
establish that Complainant’s working conditions were so intolerable that he was compelled to
resign. As a result, the Agency found that Complainant’s voluntary resignation did not constitute
a constructive discharge. Complainant filed the instant appeal without submitting any arguments
or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant’s] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove his harassment claim, 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 his protected class. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing. Therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. Here, Complainant alleged that he was subjected to
harassment based on his sex and sexual orientation as evidenced by several Agency employees’

4 A claim of sexual orientation discrimination is a claim of sex discrimination under Title VII.
Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015).
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use of offensive language and slurs. The Commission notes that the words “fag” and “faggot”
have been historically used in the United States as a highly offensive, insulting, and degrading
sex-based epithet against gay men. Further, the words “fag” and “faggot” are offensive,
insulting, and degrading sex-based epithets historically used when a person is displaying their
belief that a male is not as masculine or as manly as they are. See, e.g., Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 870, 875 (9th Cir. 2001) (concluding that verbal abuse, including the
use of the epithet “faggot,” occurred because of sex).

The Commission finds that Complainant failed to show that the alleged conduct actually
occurred. The Commission notes that Complainant presented no corroborating evidence
demonstrating that he was subjected to any inappropriate conduct. Regarding the offensive
comments, both CW-1 and CW-3 denied making the derogatory statements attributed to them
and Complainant’s identified witnesses denied witnessing any of the alleged harassing conduct.
ROI, at 151, 157. Even assuming that Complainant established that the incidents occurred as
alleged, there is no evidence that Complainant reported the conduct to any management official
prior to his resignation. Management officials confirmed that Complainant did not report any of
the alleged harassing conduct to them. Id. at 141, 146. S2 affirmed that he learned that a staff
member made a comment that Complainant did not like during a meeting, but Complainant did
not elaborate. Id. at 141-42. S2 stressed that he expressed to Complainant that any comments or
concerns needed to be addressed, but Complainant would not provide any specific allegations.
Id. at 142.

With respect to his claims that his co-workers delayed releasing him through the Sally Port and
ignored his request to pull an inmate who needed medical treatment, S2 affirmed that he offered
Complainant assistance regarding these issues, but Complainant adamantly stated that he would
work with the Custody staff to make it better. Id. at 141. Nonetheless, S2 confirmed that he
mentioned it to the Lieutenant later that day. Id. Additionally, Complainant presented no
evidence that these incidents were based on discriminatory animus. Thus, the Commission
concludes that Complainant has not demonstrated that he was subjected to a discriminatory
hostile work environment as alleged.

Constructive Discharge

Finally, to the extent that Complainant alleges that he was forced to resign because of the
Agency’s discrimination, the Commission notes that the central question in a constructive
discharge case is whether the employer, through its unlawful discriminatory behavior, made the
employee’s working conditions so difficult that any reasonable person in the employee’s position
would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No.
07A00003 (Apr. 17, 2002). As stated above, the Commission finds that Complainant has not
demonstrated that the Agency’s actions were motivated by discriminatory animus. Thus, the
Commission finds that Complainant cannot establish the necessary elements to prove
constructive discharge.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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).

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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

August 9, 2018
Date