EEOC Appeal 2020001845

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felton Z.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020001845
Agency No. BOP-2019-0459
DECISION
On unspecified date, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s January 9, 2020 final decision 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 for the Agency as a Staff Chaplain at the Federal
Correctional Institution in Memphis, Tennessee (FCI Memphis).
On March 28, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against him on the bases of race (African-American), color (black), and
in reprisal for prior EEO activity (unspecified) when:
1. 	on February 11, 2019, a manager bullied him when he was on sick leave and directed
him to a meeting;
2. 	on February 11 and 20, 2019, and March 1, 2019, management required him to perform
“management level work;”
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. 	from April 2019 to July 2019, he experienced a delay in his receipt of his annual
performance evaluation;
4. 	an investigator conducting his background investigation contacted him the day after he
spoke with a Congressional Oversight Committee, and the background investigation
has been ongoing since August 2018; and
5. 	on September 29, 2019, he became aware that the position of Supervisory Chaplain had
been posted, however, he was not made aware of the posting in an effort to prevent him
from applying.2
Following an Agency investigation, the record does not indicate that Complainant requested a
hearing before an Administrative Judge. The Agency issued the instant final decision. Given that
Complainant does not contest this matter, we will address the final decision on its merits.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 case of discrimination by presenting facts which, 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 based on 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 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).
22 The record reflects that claims 3 – 5 were later amended to the instant formal complaint.

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Agency management articulated legitimate, nondiscriminatory reasons for its actions, as more
fully discussed below.
As noted above, during the relevant period Complainant was employed as a Staff Chaplain at the
Agency’s FCI Memphis in Memphis, Tennessee.
Regarding claim 1, Complainant asserted that on February 11, 2019, a manager bullied him when
he was on sick leave and directed him to a meeting.
The Associate Warden (African-American, black) asserted that he did not bully Complainant. He
stated Complainant had notified the acting Supervisory Chaplain that he would try to come in to
work later that day and “I believe my email clearly stated “to stop by my office to see if [he] felt
better and [that he] made it to work.”
The Warden (African-American, black) stated that the former Supervisory Chaplain had been on
extended leave and the Associate Warden “needed to address some matters related to the
Department with [Complainant].”
Regarding claim 2, Complainant alleged that on February 11 and 20, 2019, and March 1, 2019,
management required him to perform “management level work.”
The Associate Warden stated that while he does not recall the specific dates, Complainant was
instructed to teach Annual Training which is part of his position description.
Regarding claim 3, Complainant alleged that from April 2019 to July 2019, Complainant
experienced a delay in his receipt of his annual performance evaluation.
The Associate Warden stated that at that time, the former Chaplain was Complainant’s assigned
rater and reviewer before his retirement from Agency employment. The Associate Warden further
stated that the former Chaplain was on extended medical leave and was unable to timely complete
evaluations. The record reflects that Complainant was one of several employees who did not get
their timely complete evaluations due to the former Chaplain’s extended leave.
Regarding claim 4, Complainant claimed that an investigator conducting his background
investigation contacted him the day after he spoke with a Congressional Oversight Committee,
and that the background investigation has been ongoing since August 2018.
The Chief, Security and Background Investigations Section (African-American) explained that
Agency management does not get involved with the scheduling of investigations, and that such
investigations are conducted by Defense Counterintelligence and Security Agency (DCSA)
personnel. Furthermore, the Chief stated that there was “no nexus between the date Complainant
was contacted by the background investigator and the date he spoke with the Congressional
Overnight Committee.”

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Regarding claim 5, Complainant asserted that on September 29, 2019, he became aware that the
position of Supervisory Chaplain had been posted. However, he was not made aware of the posting
in an effort to prevent him from applying.
The Warden stated that following the former Chaplain’s retirement, she and the Regional Office
requested that the Supervisory Chaplain position to be announced. 	She asserted that the job
vacancy announcement was posted via USAJOBS.com website and that “all staff at FCI Memphis
has access to this vacancy announcement.” Moreover, the Warden observed that Complainant had
prior knowledge of the former Supervisory Chaplain’s retirement that created the subject vacancy
announcement.
The Associate Warden asserted that the Supervisory Chaplain position was advertised on
USAJOBS.gov website and did not take any steps to concern the vacancy announcement from
Complainant.
We find that the incidents identified here were primarily simple differences of opinion relating to
work between colleagues. As discussed in more detail above, Complainant either failed to prove
the events supporting his claims occurred as alleged or, if they occurred, that retaliatory animus
played any role in management’s actions. Moreover, to the extent that any of the matters identified
above are not discrete acts, but are part of a harassment claim, we find a case of harassment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the Agency were motivated by discriminatory animus. 	See Oakley v. U.S. Postal Service,
EEOC Appeal No. 019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.

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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.
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.

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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
September 30, 2020
Date