EEOC Appeal 2020001667

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eugenia C.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020001667
Hearing No. 480-2018-00506X
Agency No. BOP-2017-0604
DECISION
On December 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 25, 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 for the Agency as a Correctional Officer at the
Federal Correctional Complex in Victorville, California (FCC Victorville).2
On August 12, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on race (African-American) and 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 resigned from Agency employment effective March 2,
2018.

2020001667	2
1. 	between September 2016 to November 2016, the Lieutenant at FCC Victorville, made
three sexual comments to Complainant;
2. 	on March 7, 2017, FCC Victorville management reassigned Complainant from the front
lobby post to a visitation room post;
3. 	on April 14, 2017, FCC Victorville management reassigned Complainant from a
visitation room post to a housing unit;
4. 	on April 14, 2017, FCC Victorville management charged Complainant with being
Absent Without Leave (AWOL); and
5. 	on April 20, 2017, FCC Victorville management charged Complainant’s sick leave
account instead of her annual leave account, as she had requested.
After its investigation into the formal complaint, the Agency provided Complainant with a copy
of the report of investigation and notice of right to request a hearing before an Equal Employment
Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely
requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant
did not respond to the motion. The AJ subsequently issued a decision by summary judgment in
favor of the Agency.
The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove
discrimination as alleged. The instant appeal followed. Complainant did not submit a timely brief
on appeal.
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.

2020001667	3
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 has 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.
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 race or sex. 	Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself.
Claim 1: Sexual Comments
Regarding claim 1, Complainant claimed that between September 2016 to November 2016, the
Lieutenant made three sexual comments to her. The AJ noted that Complainant claimed that in
the fall of 2016, she was turning in equipment at the end of her shift when the Lieutenant (male)
approached her and stated that a new policy allowed officers to be strip-searched by supervisors.
When Complainant asked to see the policy that the Lieutenant was referred to, he smiled and said
“Ok.” Complainant further claimed that the Lieutenant then stated, “it was ok to stick a finger up
an officer’s ass.”
Further, the AJ noted that Complainant claimed that another incident occurred around the same
time when the Lieutenant came into the room and said, “it looks good to see you with your clothes
on.” A named employee observed the comment and offered to write a memorandum to document
the incident, but Complainant told him to forget about the matter. Complainant did not report the
sexual comments that the Lieutenant made to her. The Lieutenant denied Complainant’s
allegations.
Even assuming that Complainant has proven that the comments made to her were harassing based
on at least her sex, there is an issue of whether or not the Agency is liable for the actions of the
Lieutenant. There is no evidence that Complainant was under the supervision of the Lieutenant
and therefore, under the facts presented in this case, it appears this is a claim of co-worker
harassment. 	In such a claim, an agency is responsible for acts of harassment in the workplace
where the Agency (or its agents) knew or should have known of the conduct, unless it can show
that it took immediate and appropriate corrective action. 29 C.F.R. §1604.11(d); Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002 (June 18,
1999). Here, even if we assume that Complainant established she was subjected to sexual
harassment through the comments made by the identified Lieutenant, we must find that
Complainant is unable to establish her sexual harassment claim because it is undisputed that
Complainant did not notify management about any of the incidents until she engaged in the EEO
process surrounding the instant complaint. In fact, when a witness to one of the comments offered
to assist Complainant in notifying management by preparing a statement, she declined the offer.

2020001667	4
As such, we conclude that based on the evidence of record there is no basis for holding the Agency
liable for the three comments made by the Lieutenant.3
Claims 2 – 5: Work Assignments and Time and Attendance Issues
As an initial matter, we note that the Lieutenant identified in claim (1) was not involved in the
remaining claims.
Regarding claim 2, Complainant asserted that on March 7, 2017, FCC Victorville management
reassigned Complainant from the front lobby post to a post in the visitation room.
The AJ noted that up to March 2017, Complainant worked as the front lobby officer on compressed
4 day/10-hour shift. When Complainant reported to work on March 7, 2017, she was notified by
a named Lieutenant (Lieutenant 2) that she was going to be reassigned.
The Lieutenant 2 (Hispanic/Native American male) explained that Complainant’s reassignment
was made to pursuant to a Memorandum of Understanding (MOU) between the union and FCC
Victorville management. 	The MOU allowed management to use the front lobby position to
accommodate employees who needed to be placed on limited light duty. Lieutenant 2 stated that
a named Officer who was going on limited light duty was placed in Complainant’s lobby position.
He noted that since Complainant was able-bodied with no documented restrictions, she was moved
to the visitation room. Moreover, the Lieutenant 2 asserted that Complainant’s shift schedule
remained the same after her reassignment.
Regarding claim 3, Complainant asserted that on April 14, 2017, FCC Victorville management
reassigned Complainant from a post in the visitation room to a housing unit.
Between March 7, 2017 and April 11, 2017, Complainant had been working a compressed
schedule from 6:00 a.m. to 4:00 p.m. On April 11, 2017, the Lieutenant 2 emailed Complainant
informing her that beginning April 14, 2017, she was being moved to a special assignment which
would entail a different schedule.
The Lieutenant 2 explained that Complainant’s shift was changed after an Institutional Duty
Officer (IDO) filed a complaint with management against Complainant. He noted that the IDO
caught Complainant on her cell phone in her car when she was supposed to be on duty. Lieutenant
2 acknowledged being directed by his Captain to remove Complainant from her post in the
visitation room because she had committed an act of dereliction of duty. 	In addition, the IDO
reported she observed Complainant acting belligerent and cursing in the presence of visitors in the
visitation room.
3 We, however, advise the Agency that as part of its affirmative responsibility to eliminate sexual
harassment in its workplace before it constitutes a violation of Title VII, it should conduct its own
management inquiry of the incidents and take appropriate corrective and preventative action.

2020001667	5
Regarding claim 4, Complainant claimed that on April 14, 2017, FCC Victorville management
charged Complainant with being AWOL.
The AJ noted that on April 14, 2017, Complainant reported for her first day at her new post in Unit
1B. Complainant arrived at approximately 6:00 a.m. However, Complainant reported to her old
post in Visitation Room. At approximately 7:00 a.m., Complainant received a call from the control
center reminding her of her assignment change. A co-worker advised her to speak with her union
representative. The union representative then told the Warden that he was taking Complainant to
an office to the Administrative Building. 	The union representative did not specify that he was
taking Complainant to see an EEO Counselor.
After meeting with the EEO Counselor, Complainant returned to the Visitation Room at
approximately 2:00 p.m. and spoke with an unnamed Lieutenant who told her to return to her
assigned post in Unit 1B. Complainant replied that she was too emotional to work. The unnamed
Lieutenant replied, “[You are] schedule[d] to get off at 2:15 p.m. [and] that it was OK, he
understood.” 	Following the phone conversation, went back to the EEO Counselor. 	The EEO
Counselor advised Complainant to go to the computer room to work on a memorandum.
The AJ further noted that at approximately 2:30, Lieutenant 2 found Complainant in the computer
room and asked “where have you fucking been?” He asserted that Complainant was not off duty
until 4:00 p.m. Complainant explained that her schedule had changed to get off at 2:15 p.m. A
review of Complainant’s time and attendance records indicate that she was charged 7.45 hours of
AWOL on April 14, 2017, for never reporting to her new assignment in Unit 1B.
Regarding claim 5, Complainant alleged that on April 20, 2017, FCC Victorville management
charged Complainant’s sick leave account instead of her annual leave account, as she had
requested.
The AJ noted that on April 20, 2017, Complainant called in from home and requested annual leave
because she was suffering from stress. When Complainant returned to work, she learned that she
had been charged with sick leave instead of annual leave. The AJ further noted that the Agency
changed Complainant’s leave from annual leave to sick leave on April 20, 2017, because she did
not have sufficient annual leave in her account to cover her requested absence and was charged
with sick leave in order to be paid for her absence from work.
Here, the undisputed evidence of record fully supports the AJ’s conclusion that there is no support
for a finding that Complainant’s race or sex played any role in the events at issue. 	In sum, we
conclude that the AJ correctly determined that the preponderance of the evidence did not establish
that Complainant was discriminated against or subjected to unlawful discrimination by the Agency
as alleged.

2020001667	6
CONCLUSION
We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, 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). 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.

2020001667	7
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