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

Equal Employment Opportunity Commission

Nov 16, 2018

0120181140 (E.E.O.C. Nov. 16, 2018)

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

Yun C.,1
Complainant,

v.

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

Appeal No. 0120181140

Hearing No. 430-2015-0397

Agency No. BOP-2014-0397

DECISION

Complainant filed a timely appeal with this Commission from a decision issued by an EEOC
Administrative Judge (AJ), dated January 10, 2018, dismissing the formal 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. 2

BACKGROUND

During the period at issue, Complainant worked as a Cook Supervisor, WS-08, at the Agency’s
Federal Correctional Institution (FCI) in Butner, North Carolina (FCI Butner).

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.

2 As the Agency did not issue a final order within 40 days of receipt of the AJ’s decision, the
decision of the AJ became the final action of the Agency. 29 C.F.R. § 1614.109(i).
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On May 3, 2014, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her on the bases of race (black), national origin (African-
American), sex (female), and in in reprisal for prior EEO activity when:

1. on February 6, 2014, she was placed on a threat assessment, relating to a
confrontation with a Cook Forman;

2. on March 5, 2014, she was issued a letter transferring her to another institution within
the complex;

3. on May 15, 2014, management only approved four (4) hours of official EEO time
despite previously being approved for eight (8) hours;

4. on May 23, 2014, she became aware she was not selected for the position of Food
Service Administrator Assistant advertised under Vacancy Announcement No. MXR-
2014-0103; and

5. on July 15, 2014, she became aware she was not selected for the position of Food
Service Administrator Assistant advertised under Vacancy Announcement No. MXR-
2014-0173.

After an investigation, the Agency informed Complainant on September 19, 2014, that it was
going to hold in abeyance, on the basis of reprisal, claims 4 and 5 because that matter was
subsumed within a pending class action. Specifically, the Agency found that in accordance with
an EEOC Administrative Judge (AJ)’s Order in Turner v. Department of Justice, EEOC Hearing
No. 541-2008-00255X, the Agency must hold in abeyance all pending individual complaints
from January 1, 1994 to present where complainants allege that they have been denied
promotions based upon the Agency’s policy or pattern and practice of retaliating against
employees because they engaged in protected Title VII EEO activity.

The Agency indicated that only claims 4 and 5 were being held in abeyance, and that
Complainant’s claims of race, national origin, and sex discrimination regarding claims 1 - 3
would be processed.3 Thereafter, the Agency investigated claims 4 and 5 with regard to

3 In Turner v. Department of Justice, the AJ certified a class consisting of “all agency employees
(nationwide) from January 1, 1994 through present how have been denied promotion based on
the Agency policy or pattern and practice of retaliating against employees because they engaged
in prior protected activity. The Agency appealed this decision. See EEOC Appeal No.
0720110008 (September 15, 2015), reconsideration denied, EEOC Request No. 0520160037
(February 11, 2016 (affirming the AJ’s class certification and ordering the Agency, among other
things, to notify all potential class members of the certification. Per our Order, the Agency
submitted a “Notice of Class Action” reprisal to all employees nationwide, on March 21, 2016.
As Complainant’s reprisal basis regarding claims 4 and 5 falls within the class identified and
certified in Turner, supra, it will not be reviewed in this decision either.
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Complainant’s claim of race, national origin and sex discrimination, in addition to its
investigation of claims 1-3.

Complainant requested a hearing before an U.S. Equal Employment Opportunity Administrative
Judge (AJ). Thereafter, the AJ issued a summary judgment decision finding no discrimination
concerning claims 1 – 3. The AJ did not address claims 4 and 5 other than to indicate in a
footnote that those claims are held in abeyance as part of the Turner class complaint, and that
those matters “will continue as part of that class action.”

As noted above, the Agency did not issue a final order, and the AJ’s decision became the final
decision in this matter. It is from this decision that Complainant appeals.

The instant appeal followed.

ANALYSIS AND FINDINGS

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. Here,
Complainant has failed to point with any specificity to particular evidence in the investigative
file or other evidence of record that indicates such a dispute. For the reasons discussed below,
we find that, even construing any inferences raised by the undisputed facts in favor of
Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ
properly issued a decision on claims 1 - 3 by summary judgment.

Disparate Treatment: Claims 1 and 2

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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
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evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.

Regarding claims 1 and 2, Complainant asserted that on February 6, 2014, she was placed on a
threat assessment relating to a confrontation with a Cook Forman and on March 5, 2014, she was
issued a letter transferring her to another institution within the complex.

During the relevant period, Complainant and a named employee (Employee 1) had a strained
work relationship which appeared to be an interpersonal conflict between them which resulted in
discord within the Food Services Department. Based on the allegations from Complainant and
Employee 1 (Caucasian male), management conducted investigations and separated them until
the investigation was completed.

Following the investigations, the Threat Assessment Team recommended that Complainant and
Employee 1 remain separated, as their interpersonal conflict remained and would likely continue
disruption in the workplace. Subsequently, both Complainant and Employee 1 were transferred
to different parts of the same complex. The record reflects that there are five facilities at FCI
Butner.

The former Warden (Caucasian, American male) stated at the time, he was the Warden at FCI
Butner. The Warden further stated when the Associate Warden notified him about an incident
that occurred between Complainant and Employee 1, he felt that the incident warranted
convening a Workplace Violence Committee meeting in which Complainant and Employee 1
would speak to the Committee, which would give him recommendations how to handle the
matter.

The former Warden explained that the Workplace Violence Committee consisted of a Chief
Psychologist, Associate Warden, Complainant’s supervisor and second level supervisor, the
Human Resources Manager, and a union representative. The former Warden stated that
following the investigation, the Committee recommended that both Complainant and Employee
1 remain separated and be transferred to different parts of the complex. The former Warden
stated that he agreed with the Committee that it would be “in the best interest to move
[Complainant and Employee 1] both to different institutions so we don’t have that conflict in the
future.”

The Complex Food Service Administrator (Caucasian, American male), also Complainant’s
second level supervisor, stated that Complainant’s situation was reviewed by the Committee
based on her “accusations versus another staff member’s accusations.
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They were kind of going against each other and they both made similar accusations towards the
other so at the time it was thought a threat assessment should be conducted.”

The Administrator stated he was not certain if the direct threats were actually made toward each
other, “but what was happening was complaints that one was not doing their job, the other was
not doing their job, tired of doing her job; it went back and forth accusing each other. In my
opinion and the opinion of others, it was kind of creating a racial divide within the department.”
Furthermore, the Administrator stated that Agency management “did not want to sit around on
our hands and not act upon something in the event that it could escalate.
The Associate Warden (Caucasian, unknown national origin, male), also Complainant’s third
level supervisor, stated that he prepared and issued the transfer letter to Complainant based on
the Committee’s recommendation. The Associate Warden stated that Employee 1 also received
a transfer letter to another facility within the complex. Furthermore, the Associate Warden stated
that the transfers were made in accordance with a Memorandum of Understanding between the
Agency and union.

After careful review of the record, we conclude that Complainant has not proven, by a
preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by
Agency management for the disputed actions in claims 1 and 2 were really a pretext designed to
mask discrimination based on race, national origin, sex or retaliatory animus.

Official Time: Claim 3

The Commission has the authority to remedy a violation of 29 C.F.R. § 1614.605, regarding
official time, without a finding of discrimination. Such a claim should not be processed in
accordance with 29 C.F.R § 1614.108, because the focus is not on the motivation, but rather on
an agency’s justification for denying a complainant a reasonable amount of official time.
Moreover, 29 C.F.R. § 1614.605 (b) permits agencies to approve or to deny official time within
the confines of a “reasonable amount of official time.”

The AJ analyzed claim 3 under the disparate treatment theory. Nevertheless, the AJ properly
found that the Agency did not deny Complainant a reasonable amount of official time.
Complainant asserted that on May 15, 2014, while his first level supervisor initially approved
eight hours of official time because he had the staff to cover her absence, the second level
supervisor reduced it to four hours of approved official time because he believed that was the
time she needed for her EEO activity, with the proviso that Complainant could later request more
time if needed. Complainant did not request more time, and the evidence of record does not
establish that the four hours approved was inadequate to conduct her EEO business on the date in
question. Therefore, we conclude the Agency provided Complainant with reasonable official
time on the date in question.

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Claims 4 and 5

In claims 4 and 5, Complainant is alleging discrimination on the bases of race, national origin
and sex, as well as the basis of reprisal which was subsumed in the above referenced class
complaint.

The AJ did not address claims 4 and 5 on the bases of race, national origin and sex. Complainant
is entitled to have those claims adjudicated by an AJ. Therefore, claims 4 and 5 on those specific
bases alone, are remanded for adjudication as more fully addressed below.

CONCLUSION

We AFFIRM the finding of no discrimination concerning claims 1 and 2. We also AFFIRM the
determination that Complainant was not improperly denied official time (claim 3). Moreover,
we determine that claims 4 and 5, solely on the basis of reprisal, were properly subsumed in the
Turner class complaint.

However, regarding claims 4 and 5 on the bases of race, national origin and sex, we REMAND
these matters to the Agency for further processing in accordance with the ORDER below.

ORDER

Regarding claims 4 and 5, on the bases of race, national origin, and sex, within thirty (30)
calendar days from the date this decision is issued, the Agency shall submit a request for a
hearing, a copy of this decision, and the complaint file to the Hearings Unit of the EEOC
Charlotte District Office. The Agency shall provide written notification to the Compliance
Officer, as set forth below, that the complaint file has been transmitted to the Hearings Unit.
Thereafter, an EEOC AJ shall issue a decision on claims 4 and 5 on the bases of race, national
origin and sex in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action
in accordance with 29 C.F.R. § 1614.110.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g).
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The Agency’s final report must contain supporting documentation when previously not
uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her
representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

November 16, 2018
Date