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

Equal Employment Opportunity Commission

Jul 6, 2017

0120151545 (E.E.O.C. Jul. 6, 2017)

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

Robby F.,1
Complainant,

v.

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

Appeal No. 0120151545

Hearing No. 460-2011-00174X

Agency Nos. P20110190 and P20130624

DECISION

On April 1, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s March 10, 2015, 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. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

At the time of events giving rise to his complaints, Complainant worked as a WS-7 Fabric
Worker Supervisor at the Agency’s Federal Correctional Complex in Beaumont, Texas. On
January 17, 2011 and August 13, 2013, Complainant filed EEO complaints alleging that the
Agency discriminated against him on the bases of race (Hispanic), national origin (Puerto
Rican), age (45), and in reprisal for prior protected EEO activity under Title VII and
the ADEA when:

1. From March 2, 2009, through August 2010, Complainant was subjected to
harassment in the form of assignment of duties and work load, credit card
requirement, removal of a sewing machine from his section, required training, and

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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when his supervisor (S1) did not sign and submit a memorandum for him to be
considered for the lock shop collateral duty position; and

2. On April 29, 2013, Complainant received a less than favorable annual
performance rating.

In his 2013 complaint, Complainant also alleged that he had been subjected to harassment when,
on May 22, 2012, S1 (who became Supervisor of lndustries) assaulted him, interfered with him
performing his law enforcement duties, and sided with an inmate. On November 4, 2013, the
Agency dismissed the May 22, 2012 claim as untimely raised with an EEO Counselor.

After the investigation of these two complaints, the Agency provided Complainant with copies of
the report of investigation and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a
hearing. On October 30, 2014, the AJ assigned to the complaints consolidated the complaints.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s December 19,
2014, motion for a decision without a hearing and issued a decision without a hearing on January
28, 2015. The AJ also issued an order on judgment on January 30, 2015. The Agency
subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that
the Agency subjected him to discrimination.

ANALYSIS AND FINDINGS

We find that the complaint was properly defined by the Agency and the AJ. Furthermore, we
find that the May 22, 2012 claim was properly dismissed for untimely EEO Counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2), because Complainant did not contact an EEO Counselor
regarding this incident until May 2, 2013, which was beyond the 45-day time limit.

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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.

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Regarding claims 1 and 2, the Commission concludes, as did the AJ, that Complainant failed to
identify the existence of a genuine issue of material fact to defeat the Agency's motion for
summary judgment. Regarding the 2013 performance appraisal, we find that Complainant did
not identify any similarly situated persons who were given higher ratings than Complainant. We
find that Complainant failed to show that he deserved the highest rating of Outstanding rather
than the rating he received of Exceeds which was the second highest rating. Furthermore, there is
no persuasive evidence that discrimination was a factor in his rating.

Regarding the alleged failure of S1 to sign a memorandum for Complainant to be considered for
the lockshop position, the record indicates that S1 told Complainant he was going on vacation
and would look at the form when S1 returned. Apparently S1 did not sign the form before he
went on vacation as he wanted to wait until he returned. Although the form apparently never was
signed, there is no indication that the lack of a signature on the form was motivated by
discrimination.

CONCLUSION

We AFFIRM the Agency’s final decision.

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
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(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).
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

July 6, 2017
Date