U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eleanore M.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120181373
Agency No. BOP-2015-01680
DECISION
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 February 20, 2018 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. Our review is de novo. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clinical Nurse, GS-
10, at the Agency’s Federal Correctional Institution in Florence, Colorado.
On June 19, 2015 (and subsequently amended), Complainant filed an EEO complaint wherein she
claimed that the Agency discriminated against her on the basis of her sex (female) when:
1. On February 9, 2015, her request for annual leave was denied and her male coworker’s
leave request was approved;
2. On April 30, 2015, her request for annual leave was denied;
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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3. On May 19, 2015, her request to have the days off changed for her assigned post was
not granted and her male coworker’s request was approved;
4. On September 19, 2015, she was mandated to work overtime by her Supervisor.
Additionally, other staff volunteered to work the vacant shift;
5. On December 8, 2015, her Supervisor ordered her to take a 30-minute lunch and did
not order her coworkers to do so;
6. On January 19, 2016, her coworker was ordered not to assist her during sick call;
7. On January 16, 2016, Complainant was counseled on her work performance;
8. On January 14, 2016, Complainant’s work schedule was changed to accommodate her
coworker; and
9. On March 4, 2016, Complainant was assigned to perform a coworker’s duties without
proper training.
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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined
that Complainant failed to prove that management subjected her to discrimination or reprisal as
alleged.
With regard to claim (1), Complainant emailed her Supervisor and her Second-level Supervisor
requesting annual leave for her 6:00 a.m. to 2:00 p.m. shift on Saturday March 7, 2015. The
Supervisor denied the leave request on the grounds that he lacked sufficient staffing for her absence
and that she needed to find her own replacement, if possible. Complainant argued that a male
coworker was permitted to take four hours of annual leave and she claimed that the Supervisor
personally covered for him. The Supervisor stated that he did not have a record of denying
Complainant the requested leave. According to the Supervisor, he initially denied the male
coworker’s leave request but that the coworker was able to locate another employee who was
willing to cover four hours of his shift, so he was granted four hours of leave.
As for claim (2), Complainant stated that she submitted a leave request for June 20 and 27, 2015,
to her Supervisor but that he disapproved the initial date and did not respond with regard to the
latter date. Complainant claimed that she received an email from her Supervisor asserting that the
request could not be approved due to staffing issues. The email noted that only two clinical staff
were available to work on the weekend. The email indicated that the leave request would be
reconsidered if Complainant could find someone to swap the shift and not generate overtime.
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Complainant claimed that the Supervisor had previously approved a male coworker’s request for
leave on June 20, 2015.
The Supervisor explained that where Complainant works, the only employees are her and another
nurse who worked the opposite hours from Complainant. The Supervisor observed that it was
impossible for him to grant leave on the two requested dates because those dates were on the
weekend. According to the Supervisor, pursuant to the Union’s Master Agreement, he could not
call someone in or require someone to stay for a weekend. The Supervisor noted that the
comparator cited by Complainant was not similarly situated because he worked at a different
facility within the complex and belonged to a different Union with different rules.
In terms of claim (3), Complainant stated that she requested for the upcoming third quarter, that
she be allowed to work Mondays through Fridays, 6:00 a.m. to 2:00 p.m., with Saturdays and
Sundays off. Complainant claimed that she needed to have these days off due to school and
childcare issues. As an alternative option, Complainant requested Thursdays and Fridays off, but
did not receive either option, and instead had Wednesdays and Thursdays off. According to
Complainant, the Supervisor permitted a change in days off for a male coworker.
The Supervisor maintained that Complainant did not tell him that her request was based on
schooling and child care needs. As for the request for Thursdays and Fridays off, the Supervisor
explained that those days required full nurse staffing as they are the most heavily trafficked days
for receiving busloads of inmate transfers who must be medically processed before they can be
placed. The Supervisor acknowledged that the male comparator cited by Complainant had
Thursdays and Fridays off but stated that he worked at a different facility which had different
staffing needs. With regard to Complainant’s request for Saturdays and Sundays off, the
Supervisor asserted that there was no way to approve weekends off that does not cause hardship
to other people. The Supervisor stated that Complainant’s request would have left him without
qualified medical staffing for the weekends when physicians and physician’s assistants were not
present.
With respect to claim (4), Complainant stated that on September 19, 2015, she had worked her
regular 6:00 a.m. to 2:00 p.m. shift, and then learned from the Assistant Health Service
Administrator (AHSA) that she was being “mandatoried” to work a double shift, for a 16-hour
day. According to Complainant, she was required to report back to work the following day at her
usual 6:00 a.m. start time. Complainant asserted that a male nurse who volunteered to work double
shifts was given subsequent days off to recover. The AHSA stated that he followed Union Master
Agreement rules by offering the 2:00 p.m. to 10:00 p.m. shift to volunteers but no one accepted.
The AHSA stated he then required Complainant to work that shift because she was already at
work. Thus, the AHSA followed protocol given that no one else agreed to take the shift.
In terms of claim (5), Complainant stated that the AHSA informed her that she needed to take a
half-hour lunch break in an area of the facility where she could not perform her duties.
Complainant stated that she thus was required to spend an additional half hour during each shift at
the facility.
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According to Complainant, she had not taken a duty-free lunch break in eight years of working for
the Agency. Complainant claimed this was reprisal as the AHSA had been interviewed the day
before concerning one of her EEO claims. The AHSA maintained that Complainant’s actual shift
was from 6:00 a.m. to 2:30 p.m., including the lunch break. The AHSA asserted that he followed
the Union Master Agreement which stated that the “standard workday will consist of eight hours
with an additional 30-minute non-paid, duty-free lunch break.” According to the AHSA, the
comparators Complainant named were not bargaining employees covered by the Master
Agreement. The Supervisor noted that Complainant had bid on an 8.5 hour shift but was leaving
after eight hours.
With regard to claim (6), Complainant stated that she was informed by her Supervisor that she was
to conduct all sick call triage rather than the mid-level providers or the physicians. Complainant
asserted that she needed assistance due to overlapping duties in different parts of the facility as she
had to conduct the Special Housing Unit pill line, and then report to the medical unit to take sick
call. Complainant stated that her Supervisor told her to just make do with what she had. The
Supervisor stated that it was Complainant’s duty as the Registered Nurse to conduct the morning
sick call triage and refer relevant urgent cases to the Physician’s Assistant. According to the
Supervisor, the Physician’s Assistant was doing the majority of the sick calls and Complainant
was not doing her duty to triage. The AHSA explained that this decision was based on efficiency
and to operate a more effective clinic since the Physician’s Assistant was falling behind in her own
duties by spending time seeing sick call patients.
As for claim (7), Complainant stated that she was counseled concerning her performance despite
the fact that she outperformed a male coworker who received an undeserved high rating. The
Supervisor asserted that he counseled Complainant because, despite numerous attempts and
multiple deadline extensions, Complainant failed to complete her assigned flu vaccinations.
Additionally, the Supervisor stated that he counseled Complainant concerning her refusals to
accept the assistance of others, noting that she sometimes told others that she did not need their
help, and then failed to complete all of her assigned duties. Complainant maintained that her
Supervisor provided her with conflicting guidance and feedback. According to Complainant, she
was told to ask others for assistance, but was criticized for having someone else do her work when
she asked for assistance reading a tuberculosis test result.
With regard to claim (8), Complainant asserted that a male coworker received permission from the
AHSA to work a short week with his preferred days off. Complainant stated that the comparator
was a Public Health Service (PHS) officer and that the AHSA attempted to give her extra shifts to
accommodate giving his PHS officers extra weekdays off. According to the Supervisor, the
change was necessary for coverage and was only for one week. The Agency noted that the
Supervisor had no control over the PHS employee’s schedule since PHS officers were not Agency
employees.
In terms of claim (9), the Agency noted that Complainant stated that the issue was not properly
framed and that instead it should read she was not provided proper instructions by a coworker to
perform a task, and the Supervisor held her accountable.
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According to Complainant, the Medical Secretary relayed incomplete and inaccurate information
from the Supervisor concerning completing the tuberculosis skin testing. Complainant stated that
the Medical Secretary did not inform her that she was to complete Hepatitis B testing, and that
when she asked whether she also needed to include the Hepatitis B vaccinations as well, the
Medical Secretary told her no.
Complainant’s Supervisor stated that he told the Medical Secretary to inform Complainant to
administer Hepatitis B vaccines and TB skin tests. The Supervisor asserted that Hepatitis B
vaccinations were part of Complainant’s duties. According to the Supervisor, Complainant was
the most skilled and experienced nurse in the complex. In light of these attributes, the Supervisor
stated that he had greater expectations of Complainant and sometimes assigned her more complex
tasks that he would not give to a less capable nurse. The Supervisor implied Complainant should
have known that the TB tests were administered along with the Hepatitis B vaccinations, and also,
she should have known she was expected to accomplish both, with or without correct instruction.
In the decision, the Agency concluded that management had articulated legitimate,
nondiscriminatory reasons for its actions as discussed above. The Agency noted that the Medical
Secretary stated that the Supervisor treated Complainant more harshly than the male nurses.
According to the Medical Secretary, the Supervisor threw “a lot of stuff on [Complainant].” The
Agency also noted that the Union President asserted there have been issues where it seemed males
were favored. The Agency, however, reasoned that these observations coincided with the
Supervisor’s explanation that he assigned Complainant more responsibility due to her superior
competence and skill level, and that he relied on her ability to accomplish more tasks without
supervision. The Agency pointed out that the Supervisor was operating a complex institution,
which was short-staffed, and that he needed to utilize all available assets. The Agency stated that
the needs of the institution did not provide the Supervisor or the AHSA the ability to provide
Complainant with the flexibility in scheduling or leave use that she wanted. The Agency
determined that the preponderance of the evidence does not support the conclusion that unlawful
discriminatory or retaliatory animus affected the Supervisor’s and AHSA’s decisions concerning
the terms of Complainant’s employment. As a result, the Agency found that Complainant had not
been subjected to discrimination or reprisal as alleged. Thereafter, Complainant filed the instant
appeal without submitting any arguments or contentions in support.
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima
facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S.
at 802 n.13.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail,
Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant established a prima facie case of sex discrimination and
reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions.
Specifically, with regard to her claims related to leave, her schedule, and lunch break, the Agency
referenced its short-staffed situation especially on weekends when Complainant sought to take
leave and the need to have Complainant available when new inmates arrived and had to be
processed. The Agency noted that many of the identified comparators who Complainant claimed
were treated more favorably worked in different parts of the complex, were PHS officers who were
a branch of the military, or belonged to a different Union with different rules.
Regarding the counseling letter, management explained that Complainant was issued it because
despite numerous attempts and multiple deadline extensions, she failed to complete her assigned
flu vaccinations. As for her lunch break, management asserted that Complainant was required to
have a 30-minute duty-free lunch since she had bid on an 8.5-hour day and was leaving work early.
With respect to her duties, management explained that Complainant was assigned to handle all of
the sick calls because that was her responsibility and the Physician’s Assistant was falling behind
in her own duties because she was assisting Complainant in the sick call triage. There is no
evidence that these duties were not part of Complainant’s position description. Management
officials additionally asserted that Complainant should have been aware that she was supposed to
conduct Hepatitis B vaccinations. Complainant’s Supervisor further explained that he assigned
Complainant more responsibility due to her superior competence and skill level, and that he relied
on her ability to accomplish more tasks without supervision.
Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
The Commission finds no persuasive evidence that Complainant's sex or prior protected EEO
activity were a factor in the Agency's actions. At all times, the ultimate burden remains with
Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were
not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus.
Complainant failed to carry this burden. As a result, the Commission finds that Complainant has
not established that she was subjected to discrimination or reprisal as alleged.
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Hostile Work Environment
Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of
harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by Agency management were
motivated by discriminatory or retaliatory animus on any of her alleged bases. See Oakley v. U.S.
Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
The Agency’s determination that no discrimination occurred is AFFIRMED.
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.
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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 12, 2019
Date
