EEOC Appeal 2020000815

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chad T.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020000815
Hearing No. 541-2015-00064X
Agency No. BOP-2014-0165
DECISION
Complainant timely 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 final order
concerning 	his 	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. For the following reasons, the Commission AFFIRMS the Agency’s
final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge (AJ) properly issued
summary judgment in favor of the Agency; (2) whether Complainant established that the
Agency's proffered explanations for its actions were pretext to mask discrimination based on race
and reprisal; and (3) whether Complainant established that he was subjected to a hostile work
environment based on his protected classes.
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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BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Material Handler at
the Agency’s Trust Fund Department, Federal Correctional Institution, in Littleton, Colorado.
Report of Investigation (ROI), at 17. During the relevant time period, the Trust Fund Supervisor
(Caucasian, female) served as Complainant’s first-level Supervisor (S1). ROI, at 127.
According to Complainant, S1 overlooked him, gave him extra work, and scrutinized his work
more than other department staff. Id. at 101-102. Complainant specifically believed that S1 set
him up for failure when she made changes to the Special Purchase Order procedure, and he also
maintained that S1 faulted him when the new procedure took him longer to perform. Id.
Complainant also attested that S1 lowered his quarterly evaluations without counseling him, but
his annual evaluation was not affected by the lowered quarterly evaluations. Id. at 104.
Complainant averred, moreover, that he was subjected to excess scrutiny and a hostile work
environment when he reported S1 for conduct violations when she and other staff provided pizza
and product samples to inmates. Id. at 105-106. Complainant additionally stated that when he
would arrive into a certain area, S1 would announce, “Complainant is in the house,” or “do not
be bothered by Complainant.” Id.
An Associate Warden (AW1) however attested that the new Special Purchase Order procedures
implemented by S1 were within policy, so Complainant was instructed to comply with S1’s
instructions. Id. at 117-118. The Associate Warden further stated that Complainant reported
allegations of misconduct by S1, which included staff giving pizza and product samples to
inmates. Id. at 118-119. The Associate Warden averred that the investigation into the allegations
found no evidence of misconduct or found that S1’s actions were common practice within the
Agency. Id. A second Associate Warden (AW2) believed that S1 justified Complainant’s
lowered quarterly evaluations by stating that Complainant’s productivity had slowed because he
was constantly questioning S1’s operational procedures and spending so much time trying to
prove that she was wrong. Id. at 123.
Complainant additionally contended that he was involuntarily omitted from the laundry schedule
from April to July 2014. Supplemental Report of Investigation (Supp. ROI) at 25-27. According
to Complainant, Material Handlers were required to rotate through four different operations of
the department, one of which was the laundry. Id. He alleged April 2014 was the first quarter
rotation for Material Handlers to rotate through four different operations within the department
and that he was the only Material Handler who bid for the laundry operation. Id. Complainant
averred that he was not allowed to work in laundry until July 2014. Id.
S1 explained that there were six Material Handlers in the department during the time frame and
Material Handlers would submit, every quarter, a request for the position they wanted to work
and granting the requested position was based on seniority. Supp. ROI, at 44-45. S1 believed that
another employee with more seniority than Complainant requested and was given the laundry
rotation. Id. S1 stated that Complainant was at the bottom of the seniority roster. Id.

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Complainant attested, moreover, that he received a three-day suspension from management,
wherein he was charged with brining a personal cell phone to the warehouse and charged with
showing photos of female staff to inmates. However, according to S1, Complainant was given
the suspension for: 1) leaving the trash compactor behind Food Service unsecured; and 2)
showing inappropriate photos of female staff members to the inmates that worked inside the
Warehouse, which was reported by inmates. Id. at 47.
On February 7, 2014 , Complainant filed an EEO complaint, as amended, alleging discrimination
and a hostile work environment by the Agency on the bases of race (African-American) and
reprisal for prior protected EEO activity2 when:
1. 	From July 2013 through January 17, 2014, he was subjected to harassment in the form of
excessive scrutiny regarding his work performance, an involuntary change in work
procedures, and his quarterly evaluations and ratings were lowered. He further alleged
that he had been subjected to continuous harassment as a result of reporting to
management possible standards of conduct violations within the department.
2. 	From April 2014 through July 2014, he was involuntarily omitted from the laundry
schedule.
3. 	On August 21, 2014, he was informed by the Warden that he would be suspended for
three days, beginning August 25 to August 27, 2014.3
Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ).4 Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 9,
2017, motion for a decision without a hearing and issued a decision without a hearing on
September 13, 2019, in the Agency’s favor. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.
STANDARD OF REVIEW
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
2 Complainant cites the instant EEO complaint as his protected EEO activity.
3 On June 5, 2014, S1 issued Complainant with a Proposed Suspension for six days. Supp. ROI,
at 58. The Warden subsequently reduced the Suspension to three days.
4 The AJ ordered the Agency to conduct a supplemental investigation after Complainant
amended his complaint to add claims 2 and 3.

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MD-110), at Chap. 9, § VI.B. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual
conclusions 	and 	legal 	analysis 	-- 	including 	on 	the 	ultimate 	fact 	of 	whether 	intentional
discrimination 	occurred, 	and 	on 	the 	legal 	issue 	of 	whether 	any 	federal 	employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).
CONTENTIONS ON APPEAL
On appeal, Complainant asserts, in pertinent part, that S1 and his coworkers made jokes about
him and announced his arrival when he approached the building. Complainant states that he was
called a “rat” and a snitch by a coworker in the presence of other staff members. Complainant
contends that staff would stop speaking with him and get up and depart upon his arrival into
areas. Complainant asserts that he was told that he was making the environment uncomfortable
because he was preventing inmates from continuing to get pizzas, churros, pastry items, and
other illegal favors brought into the institution by S1 and other employees.
In response, the Agency requests that we affirm its final order adopting the AJ’s decision.
ANALYSIS AND FINDINGS
Summary Judgment
We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule
56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party's favor. Id. at 255. 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.

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If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may
properly consider issuing a decision without holding a hearing only upon a determination that the
record has been adequately developed for summary disposition. See Petty v. Dep't of Def.,
EEOC Appeal No. 01A24206 (July 11, 2003).
Finally, an AJ should not rule in favor of one party without holding a hearing unless he or she
ensures that the party opposing the ruling is given (1) ample notice of the proposal to issue a
decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material
facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in
discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself
precludes summary judgment “where the [party opposing summary judgment] has not had the
opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for a decision
without a hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could
order discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).
After a review of the record, the Commission finds that the AJ's issuance of a decision without a
hearing was appropriate. The record has been adequately developed, Complainant had the
opportunity to engage in discovery, he was given notice of the Agency's motion to issue a
decision without a hearing, he was given an opportunity to respond, and he was given a
comprehensive statement of undisputed facts.
Disparate Treatment (Claim 3)
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. 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, 441 U.S.
at 802 n. 13. 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). To
ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
In the instant case, we find that assuming, arguendo, that Complainant established a prima facie
case of discrimination based on his race and protected EEO activity, the Agency articulated
legitimate, nondiscriminatory reasons for suspending Complainant.

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Specifically, as noted above, S1 explained that Complainant was given the suspension for: 1)
leaving the trash compactor behind Food Service unsecured; and 2) showing inappropriate
photos of female staff members to the inmates that worked inside the Warehouse, which was
reported by inmates.
The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant
asserts that having a personal cell phone is in fact allowed in the warehouse and maintains that
the charge that he showed inappropriate photos to inmates was fabricated.
Upon review, we find that that Complainant has not shown that the Agency’s reasons for his
suspension were pretextual or motivated by discriminatory or retaliatory animus. In so finding,
we note that, while there is no specific evidence that Complainant in fact showed photos of
female staff members, the record does show that Complainant admitted that he did show photos
from his cell phone to inmates of his jewelry. Supp. ROI, at 59-60. The record also reflects that
the Warden sent staff members memorandums reminding them that cell phone use was
prohibited. Id. We find that no evidence has been presented in this case specifically showing that
the suspension issued to Complainant was because of his race or prior protected EEO activity.
Hostile Work Environment
Finally, to the extent that Complainant is alleging that he was subjected to a hostile work
environment, the Commission finds that under the standards set forth in Harris v. Forklift
Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail.
See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar.
3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that
he failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus with regard to claim 3. See Oakley v. U.S. Postal Serv., EEOC Appeal
No. 01932923 (Sep. 21, 2000).
With respect to claims 1 and 2, we find that Complainant has not proven sufficiently severe or
pervasive events to show that he was subjected to a hostile work environment. Although
Complainant's work environment may not have been ideal, we do not find that it was hostile
and/or abusive based on Complainant's protected classes. In so finding, we note, for example,
that there is no dispute that Complainant was eventually assigned to the laundry schedule in July
2014 and his final appraisal rating was not affected by the alleged lowered quarterly evaluations.
Supp. ROI, at 27., ROI, at 104. We note that not every unpleasant or undesirable action which
occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No.
0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688
(Dec. 19, 2009).

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Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile
work environment, we find that Complainant has not shown that any of the alleged incidents
were motivated by discriminatory or retaliatory animus. As such, we find that Complainant has
not established that he was subjected to a hostile work environment based on race or reprisal.5
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 order adopting the AJ’s decision
finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or
the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within 	thirty 	(30) 	calendar days 	of 	receipt 	of 	this 	decision. 	If 	the party requesting
reconsideration elects to file a statement or brief in support of the request, that statement or
brief must be filed together with the request for reconsideration. A party shall have twenty
(20) calendar days from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support of his or her request, via the EEOC Public Portal, which can be found at
https://publicportal.eeoc.gov/Portal/Login.aspx.
5 To the extent that Complainant asserts that the Agency harassed him because he reported
allegations of misconduct by S1, which included staff giving pizza and product samples to
inmates, the Commission has held that whistleblower activities are outside the purview of the
EEO complaint process. See Jonnie C. v. Dep't of Transp., EEOC Appeal No. 0120172670 (Oct.
4, 2017).

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Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. 	In the absence of a legible postmark, complainant’s request to
reconsider shall be deemed timely filed if OFO receives it by mail within five days of the
expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. § 1614.403(g). 	Either party’s request
and/or statement or brief in opposition must also include proof of service on the other party,
unless complainant files his or her request via the EEOC Public Portal, in which case no proof of
service is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

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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 5, 2020
Date