2020001392•EEOC Appeal 2020001392
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earlie P.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001392 Hearing No. 410-2018-00343X Agency No. BOP-2017-0959 DECISION On December 3, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 30, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Lieutenant at the Agency’s United States Penitentiary in Atlanta, Georgia.2 On August 21, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on sex (female) when: 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 The record reflects that Complainant retired from Agency employment effective August 31, 2017.
2 2020001392 on July 21, 2017, the Captain reassigned her from her post of Airlift Lieutenant to Morning Watch Operations, due to a bus accident during an airlift. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ reviewed the entire hearing record in the instant case as well as conducting an Initial Conference with the Agency and Complainant to afford them the opportunity to supplement the record. The AJ determined that development “of the record is unlikely to lead to a finding of discrimination, and preponderance evidence fails to show that Complainant was subjected to discrimination.” On September 23, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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
3 2020001392 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). In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period, Complainant was employed by the Agency as a Lieutenant at the United States Penitentiary in Atlanta, Georgia. Complainant had held the position of Lieutenant since 2012, and was employed by the Agency for approximately over 20 years before her retirement. The Captain was Complainant’s second-level supervisor. Complainant claimed that on July 21, 2017, the Captain reassigned her from her post of Airlift Lieutenant to Morning Watch Operations due to a bus accident during an airlift. Airlift Operations assigned Complainant to transport inmates from the penitentiary to the Atlanta airport via bus and while exiting the institution, the bus scraped the lower wall. Complainant claimed that there have been several male officers and supervisors involved in bus accidents but were not removed or did not receive any type of discipline. The Captain explained, however, that if an accident is of an employee’s fault or negligence, the employee can be removed from his or her position. In the instant case, the Captain noted that Complainant was a non-bargaining correctional supervisor and “management has the right to assign and re-assign positions and responsibilities.” He noted that when he informed Complainant that she would be reassigned, she felt that such action was not equitable. The Captain stated informed Complainant that “the accident was avoidable….” Furthermore, the Captain placed Complainant on notice that she would be suspended from driving the bus “for a period not to exceed 30 days.” Complainant asserted that several male officers and supervisors involved in bus accidents were not removed or did not receive any type of discipline. The Captain acknowledged a named male officer was reassigned after driving through a sally port at a Federal Correctional Institute in Alabama causing extensive damage.3 The Captain also noted another named male officer had a bus accident. Specifically, the Captain noted that during a review of the accident, the officer in question used defensive driving techniques and saved the bus from a direct head on collision. The Captain found that in that accident, the bus did sustain some cosmetic damage but it was unavoidable and that the staff member safeguarded the staff and inmates on that bus. 3 A sally port is a secure and controlled entry way to a federal correctional institution.
4 2020001392 Moreover, the Captain stated that Complainant’s sex was not a factor in his decision to reassign her post of Airlift Lieutenant to Morning Watch Operations. The Associate Warden stated at that time he was notified by the Captain that the bus Complainant was driving “had run into the arch in front of the institution and continued on to the airport and did not stop. Then, we had to have our medical department go to the airport to conduct medical assessments on each inmate on the bus before the U.S. Marshall would take custody of the inmates.” He noted that the Captain reassigned Complainant because of the bus accident. Furthermore, the Associate Warden asserted that the Captain did not take disciplinary action on Complainant and that he “exercised his duties as a supervisor/management to assign/reassign her position.” Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. Beyond her bare assertions, Complainant has simply provided no evidence to support her claim that her treatment was the result of her sex. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment, finding no discrimination. 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).
5 2020001392 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). 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.
6 2020001392 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 September 30, 2020 Date
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