0120131625
08-08-2013
Sharon E. Spencer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Sharon E. Spencer,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120131625
Agency No. BOP-2010-00756
DECISION
On March 11, 2013, Complainant filed an appeal from the Agency's February 13, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chaplain (GS-12) at the Agency's Bureau of Prisons' Federal Correctional Complex in Oakdale, Louisiana (Facility).
The record indicated that Complainant's co-worker (Co-worker1, Black male, endorsed by the same religious organization) had been assigned to transport firewood for the Native American sweat lodge until he left the Facility in 2009. She indicated that when Co-worker1 retired, the Chaplain (White, male, Protestant) assigned the firewood transport duty to Complainant. She noted that she does this "[a]bout twice a month or whenever firewood is needed, which is usually twice a month." She states she drove a cart to the warehouse where inmates load the firewood on to the cart. She then drove the cart through the gate and onto the Federal Correctional Institute (FCI) compound to the area of the sweat lodge where other inmates unload it. Complainant believed that the Chaplain discriminated against her in giving her the assignment. As a result, Complainant contacted the EEO Counselor.
On October 6, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), sex (female), and religion (Coalition of Spirit-Filled Churches) when, from July 23, 2010, until September 28, 2010, she was subjected to a continuing violation and disparate treatment concerning her assignment. Specifically, she was disparately assigned the weekly task of hauling firewood for the Native American sweat lodge.
On February 23, 2011, at the conclusion of the investigation, the Agency provided a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). On April 14, 2011, the Agency received the matter for a final agency decision. The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on February 13, 2013. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
This appeal followed. On appeal, Complainant asserted that she had sufficient work already assigned to her and that there was no need to give her the firewood duty. Further, Complainant indicated that she worked at the complex as a whole and not just the Federal Detention Center. As such, Complainant claimed that it would only be fair not to assign her the additional firewood duty. The Agency requested that the Commission affirm its decision finding no discrimination.
ANALYSIS AND FINDINGS
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. (November 9, 1999) (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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
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, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Upon review, we find that the Agency provided legitimate, nondiscriminatory reasons for its action. The Chaplain stated that he assigned work assignment among the staff within the department based on the needs of the department. He noted that Complainant was physically assigned to the Federal Detention Center (FDC). He stated that the inmates at the FDC tend to be less religious and the center has less religious activities. Since there is less of a workload at the FDC, he assigned Complainant the firewood duty which only occurs twice a month.
We turn to Complainant to establish that the Agency's reason is pretext for discrimination. Complainant asserted that she felt that the assignment was discriminatory because others who were of lower grades could have conducted the assignment. Complainant also argued on appeal that she had enough assignments working at the facility. Complainant merely asserted that the assignment could have been performed by others and that she had sufficient work without any proof or evidence to support her claim. As such, we find that Complainant has not established that the Agency's reasons were pretext for discrimination based on her race, sex and/or religion.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 8, 2013
__________________
Date
2
0120131625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131625