EEOC Appeal 2020001141

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nevada R.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020001141
Agency No. BOP-2018-01084
DECISION
On December 1, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 31, 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 as a Correctional Systems Officer at the Agency’s
Federal Prison Camp (FPC) in Bryan, Texas.
On July 5, 2018, Complainant filed a formal complaint alleging that the Agency discriminated
against her based on sex (female) when:
1. 	from June 5, 2018 to June 30, 2018, a Bureau of Prisons (BOP) supervisor subjected
her to harassment by being unresponsive to her requests, sending her belittling
comments, and discussing Employee Assistance Services at monthly meetings;
2. 	on June 20, 2018, a BOP supervisor nominated a male co-worker for a greater
performance award than what Complainant received; and
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 June 21, 2018, a BOP manager did not provide a “relief” so that Complainant could
attend training.
After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge (AJ). 	Complainant initially requested a hearing. 	Complainant, however, subsequently
withdrew the hearing request. The Agency issued the instant final decision on January 31, 2020,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Complainant claims that she was subjected to harassment by her supervisor. To establish this
claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was
subjected to harassment in the form of unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on her statutorily protected class; (4)
the harassment affected a term or condition of employment and/or had the purpose or effect of
unreasonably interfering with the work environment and/or creating an intimidating, hostile, or
offensive work environment; and (5) there is a basis for imputing liability to the Agency. See
Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
In other words, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected basis – in this case, her sex. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.
Here, Complainant claimed that her supervisor created a hostile work environment for her.
Specifically, she stated that the supervisor was unresponsive to her requests, sending her belittling
comments, and discussing Employee Assistance Services (EAP) at monthly meetings; nominated
a male co-worker for a greater performance award than what she received; and a BOP manager
did not provide a relief so that Complainant could attend training.
The Supervisory Correctional Systems Specialist (male) stated that during the relevant period, he
was Complainant’s supervisor. He denied Complainant’s allegations that she was being harassed.
Specifically, the supervisor stated that he had no recollection of being unresponsive to
Complainant’s requests as she alleged and asserted that “in general, I placed orders for office
supplies within reasonable timeframes commensurate with the needs of the department.” There
was no evidence establishing a pattern of other similarly situated employees being consistently
treated more favorably than Complainant in this regard.

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Moreover, concerning discussions at the 	monthly meeting on June 5, 2018, the supervisor
indicated, “I did not discuss service offerings concerning Employee Assistance Program (EAP)
within the period specified by the complainant. However, EAP service offerings were shared to
all employees at monthly meetings” during the months of January 2018 to May 2018. He further
stated that he discontinued discussion of EAP as of June 2018 after the Senior Officer Specialist,
also a union representative, “attended the May 21, 2018 monthly meeting and verbalized her
disagreement stating she perceived my mention of EAP services as unnecessary.”
Complainant further claimed that on June 20, 2018, the supervisor nominated a male co-worker
for a greater performance award than what Complainant received. However, the supervisor stated
that on August 29, 2018, Complainant and the male co-worker received the same Superior
Sustained Performance (SSP) award.
Regarding Complainant’s claim that on June 21, 2018, a BOP manager did not provide a “relief”
so that Complainant could attend training, the supervisor stated that he has no recollection of this
matter.
The Warden (female) stated that she encouraged all supervisors “to periodically discuss EAP
services during staff meetings so ensure staff are aware of the availability and different types of
services.” 	She further noted that Complainant and the male co-worker received an SSP award
which is a cash award. In addition, the Warden stated that the supervisor rated Complainant as
“Outstanding for the year, which is the highest rating. 	So, by policy, it was required that she
receive a performance award. Because she had already achieved a step 10 status, she was ineligible
for a step increase award (QSI) so there is no step above a 10. 	Therefore, she received an SSP
[sustained superior performance cash award].”
Here, there is simply no evidence to support a finding that the events occurred as alleged by
Complainant or that her sex played any role in these events. 	Her claim of discriminatory
harassment is precluded based on our findings that Complainant failed to establish that any of the
actions taken by the Agency were motivated by her sex. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).
Constructive Discharge
We note that in its instant final decision, the Agency noted that Complainant also alleged that she
retired in August 2018 because of the alleged harassment and stress that her supervisor inflicted
on her, although it did not appear that she was alleging constructive discharge. 	On appeal,
Complainant argued that she was forced to retire due to the discriminatory hostile work
environment.
The record contains a copy of Complainant’s brief on appeal in which she stated she requested her
medical records to show how her supervisor’s actions “were affecting my health and being stressed
out. The decision to retire when I was eligible was made due to the toll [supervisor’s] actions was
taking on my overall health.”

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In essence, by arguing her retirement was coerced by the Agency's actions, Complainant is raising
a claim that she was constructively discharged. The Commission has established three elements
which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable
person in the complainant's position would have found the working conditions intolerable; (2) the
conduct that constituted discrimination against the complainant created the intolerable working
conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working
conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11,
2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995).
Here, in light of our finding that Complainant was not subjected to a hostile work environment
based on discriminatory animus for her sex, we conclude that Complainant has failed to prove
that her retirement was a constructive discharge from the Agency in violation of Title VII.
CONCLUSION
We AFFIRM the Agency’s decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
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. 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.

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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. 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 23, 2020
Date