EEOC Appeal 2020000091

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Chau Q.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020000091
Hearing No. 440-2017-00216X
Agency No. BOP-2016-0445
DECISION
On August 13, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s November 14, 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 Correctional Systems Officer at the Agency’s
Correctional Systems Department (CSD), Federal Correctional Institution in Pekin, Illinois (Pekin
FCI).
On April 28, 2016, Complainant filed the instant formal complaint. Complainant claimed that she
was subjected to harassment/a hostile work environment based on sex (female) and in reprisal for
protected EEO activity (prior EEO activity in 2012) 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.

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1. 	a co-worker filed a false claim of hostile work environment against her and allegedly
spread false rumors about her that questioned her character;
2. 	a co-worker slammed doors in her face;
3. 	her co-workers refused to answer her radio and phone calls; and
4. 	the new staff is told to stay away from her.
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
Agency submitted a Motion for Decision Without a Hearing (Motion). Complainant responded to
the Motion. 	On July 30, 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.
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. However, we have also recognized that not every factual
dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of
Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice,
EEOC Appeal No. 0120120271 (Aug. 21, 2014).
Here, Complainant failed to establish a genuine dispute that required a hearing. 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 a harassment/hostile work environment 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 and prior
EEO activity.

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Only if Complainant establishes both of these elements – hostility and motive – will the question
of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982);
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris
v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
The record developed during the investigation establishes that in 2005, Complainant was hired as
a full-time employee by CSD, Pekin, FCI. In August 2014, Complainant was promoted to a CSO
position. 	The CSO position is responsible for the admission and release system, physical
processing, prevention of contraband introductions, identification, safeguarding and disbursing of
personal property along with cash monies and negotiable instruments, delivery and processing of
mail and packages, and coordination of prisoner transfers.
The Correctional Systems Supervisor was Complainant’s supervisor and her second-level
supervisor was the Case Management Coordinator. 	The Associate Warden was Complainant’s
third-level supervisor. Complainant identified the Lieutenant, Senior Officer Specialist, Secretary,
and Captain Secretary as the individuals responsible for subjecting her to harassment.
The Lieutenant did not work in the same department as Complainant. He is not in Complainant’s
chain-of-command. 	The Senior Officer Specialist and Complainant are co-workers but do not
work in the same department.
The AJ noted that sometime in 2015, Complainant reported that she was walking outside the
facility when the Secretary passed her and ran her shoulder into her body. The Secretary reported
that Complainant was the one who went out of her way to run her left shoulder into the Secretary’s
left shoulder.
On September 8, 2015, Complainant was walking across the parking lot after work with several
co-workers when the Lieutenant yelled out to her. Complainant was unsure who the Lieutenant
was yelling at, looked around, got in her car, and drove away without incident. The Lieutenant
reported that he was yelling because he was 75 feet away from the Complainant and was talking
across a parking lot. The Human Resources Time & Attendance (HR T&A) stated that a named
CSO (CSO 2) stated they saw the Lieutenant yell aggressively at Complainant and saw
Complainant laugh and get in her car. When Complainant got home, she located the Lieutenant
on Facebook and sent him a message stated that she did not realize he was yelling at her and
requesting that he never yell at her again.
Complainant stated that on September 9, 2015, she submitted a memo to the Warden regarding
“Harassment in the Workplace.” Specifically, Complainant claimed that the Lieutenant yelled at
her in the parking lot. 	She also stated that she responded to the Lieutenant on Facebook. 	In
addition, Complainant stated that the Lieutenant later confronted and told her that he and his wife
were getting a divorce.

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On September 10, 2015, the Lieutenant submitted a memo to the Warden regarding “Staff Member
[Complainant] creating a Hostile Work Environment concerning [Senior Officer Specialist] and
Myself.” The Lieutenant alleged that Complainant was spreading rumors that he and the Senior
Officer Specialist were having a sexual relationship.
On September 10, 2015, the Senior Officer Specialist submitted a memorandum to the Warden
regarding “Hostile Work Environment.” 	She alleged that Complainant was telling other staff
members that she was in a sexual relationship with the Lieutenant. The Senior Officer Specialist
also alleged that Complainant accused her of having a sexual relationship with staff members.
The AJ noted that on September 10, 2015, a threat assessment committee was convened to address
the workplace situation between the Lieutenant, Senior Officer Specialist, and Complainant. All
three individuals were interviewed by the committee separately. 	The Senior Officer Specialist
reported that Complainant was spreading rumors about her having sex with the Lieutenant and
other 	employees, 	and 	that 	this 	behavior 	made 	her 	feel 	uncomfortable 	working 	around
Complainant. Complainant reported that she was upset with the manner in which the Lieutenant
spoke to her in the parking lot, felt as though the Senior Officer Specialist got whatever she wanted
despite being an unsatisfactory worker, and that numerous employees were talking about
Lieutenant and Senior Officer Specialist, and that she was just “telling it like it was.” Finally, the
Lieutenant stated that he included all relevant information in his memo and that he was worried
Complainant’s rumors could affect his relationship with his wife. All parties were given cease and
desist letters and reminded to be professional.
On September 15, 2015, Complainant submitted a memorandum to the Warden regarding
“Harassment by a Supervisor. She claimed that the Lieutenant and Senior Officer Specialist lied
in their memoranda regarding the September 8, 2015 incident.
On September 22, 2015, HR T&A submitted a memorandum to the Warden with the subject
“Witness Statement.” He asserted that on September 8, 2015, he observed the Lieutenant in the
parking lot saying to Complainant “by the way I didn’t get kicked out of my house, so stop
spreading rumors.” The HR T&A also noted that Complainant laughed and went on to her vehicle.
On September 22, 2015, CSO 2 submitted a memo to the Warden with the subject “September 8-
[Lieutenant] Comments.” CSO 2 stated in his memo that he heard the Lieutenant make comments
toward a group of employees in the parking lot, words to the effect of “I did not get kicked out of
my house and don’t spread rumors unless you know all the facts.” 	He noted that Complainant
laughed and then walked to her car.
On September 28, 2015, the Warden referred allegations of Unprofessional Conduct consisting of
a hostile work environment, false rumors, gossiping and providing false memoranda to the
Bureau’s Office of Internal Affairs (OIA).
On October 1, 2015, the Acting Chief of OIA referred the above matter back to FCI Pekin for
appropriate disposition.

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Under Program Statement 1210.24, Office of Internal Affairs, Classification 3 cases are defined
as misconduct that ordinarily has less impact on institutional operations, but result in an adverse
or disciplinary action depending on the severity of the misconduct. Classification 3 cases include
Unprofessional Conduct. 	Under Program Statement 1210.24, the CEO of the institution can
proceed with a local investigation for allegations involving bargaining unit staff and non-
bargaining unit staff at the GS-12 level or below without first obtaining OIA approval.
The AJ noted in his affidavit, the Warden stated that he was never made aware of any allegations
that the Secretary “body slammed” Complainant. The Associate Warden also stated that no one
made complaints to him that the Secretary “body slammed” Complainant.
The Warden also noted that he had never heard allegations that Complainant’s radio calls were
being ignored. 	The Associate Warden never received any complaints that Complainant’s radio
calls were being ignored. The Case Management Coordinator, also Complainant’s second-level
supervisor, did not witness Complainant’s radio calls being ignored and that Complainant reported
the radio call allegations after the fact.
The Warden also stated that he did not receive any complaints that the Senior Officer Specialist
and the Unit Secretary were spreading rumors about Complainant. 	The Associate Warden also
noted that he did not receive any complaints. 	The Correctional Systems Supervisor, also
Complainant’s supervisor, never heard the Senior Officer Specialist or the Unit Secretary spread
rumors about Complainant.
On April 1, 2016, the Senior Officer Specialist submitted a memorandum to the Captain and a
named Lieutenant (Lieutenant 2) with the subject “[Complainant].” 	In her memorandum, the
Senior Officer Specialist stated that she was standing outside the smoking area with the Captain
Secretary when Complainant walked by, pointed at them and stated “Well that only last a f***ing
month.”
On April 1, 2016, the Captain Secretary submitted a memo to the Captain and Lieutenant 2 with
the subject “[Complainant.” 	In her memo, the Captain Secretary stated that she and the Senior
Officer Specialist were standing in the smoking area when Complainant walked by, pointed at
them and stated “Well that only lasted a f***ing month.” She also stated that in her memo that
she privately confronted Complainant about her comment.
The AJ noted that the Case Management Coordinator, also Complainant’s second-level supervisor,
stated that Complainant informed her that the Senior Officer Specialist was ignoring her radio calls
after the fact. She stated that she informed Complainant that she did not hear this happening and
advised her to call her the next time the Senior Officer Specialist ignored her call so she could
witness it. 	The Plumber Worker Supervisor, HR T&A, a named female CSO, Maintenance
Foreman, and a named male CSO witnessed Complainant call the Senior Officer Specialist on the
radio and she ignored Complainant’s calls. The Plumber Worker Supervisor also reported that the
Senior Officer Specialist and Secretary had spread negative rumors about Complainant’s character.

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In contrast, the Captain Secretary and Secretary reported they observed the Senior Officer
Specialist responding to Complainant’s radio calls.
In addition, the AJ noted that Captain Secretary and Lieutenant stated that Complainant and her
boyfriend created fake job postings to taunt the Senior Officer Specialist. These fake job positions
were left around the prison that stated “No self-respect, wreck marriages, ability to be
compromised” and “No ability to do anything” as job requirements. The Senior Officer Specialist
filed an EEO claim against Complainant but subsequently elected to resolve the issue informally.
Complainant’s supervisor (male) stated that he recalled on one occasion when Complainant
informed him that the Captain Secretary accused Complainant of talking badly about the Senior
Officer Specialist. He noted that Complainant prepared a memorandum and “gave it to me, I’m
pretty sure I signed it, and I walked it over to [Case Management Coordinator’s] office and I don’t
remember if she signed it or not. 	We were discussing what to do with it, and then [Associate
Warden] is the next office over, so we called him in and gave it to him.” The supervisor noted that
the Associate Warden sent Complainant’s memo to EEO and “I might’ve got an email back just
saying that he sent it, that they acknowledged that they got it.”
With respect to Complainant’s allegation that the Senior Officer Specialist ignored her calls each
time she called the unit with regards to work-related matters, the supervisor stated that he was
aware of the matter. Specifically, the supervisor stated that he heard from Complainant that she
had been trying to call Control and the Senior Officer Specialist was working in Control, and she
did not acknowledge her, and “that’s the only time I think I’ve heard of that happening.” 	The
supervisor further stated that Complainant addressed the issue with the Case Management
Coordinator.
In addition, the supervisor noted that Complainant “avoids, when [Senior Officer Specialist]
worked at the Camp, she would avoid going over there…I can’t recall any other times that [Senior
Officer Specialist] didn’t answer.”
Regarding Complainant’s allegation that the Senior Officer Specialist and Secretary spread rumors
and spoke negatively about her, the supervisor acknowledged he never heard either of them saying
anything negative. The Supervisor stated that , “rarely do I talk to either of them about anything
other than work-related issues. I’ve never heard them say anything negative about [Complainant].
I’ve never talked to them about [Complainant] either.”
With respect to Complainant’s allegation that the new staff is told to stay away from her, the
supervisor stated that he was not aware of it. He noted that when Complainant told him what had
happened, “I probably even said ‘ just stay away.’”
The Case Management Coordinator (CSM) (female), also Complainant’s second-line supervisor,
stated at that time she was part of the threat assessment committee. She stated that in regard to
Complainant’s allegations that the Security Officer Specialist and Secretary spread rumors about
her and speaks negatively about her, “I do not have any first hand knowledge about rumors.

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I have heard (third party) that they speak negatively about each other.” CSM further stated that
when talking to Complainant, she “usually listen and try to be there for her and advise her to let
me know if there is anything I can do but most of these things are hearsay and “some of them occur
outside of work,”
Furthermore, the CSM asserted that “during these times nothing was ever brought to my attention
that was deemed threatening nor did she request to do anything.”
The Associate Warden (AW) (male) stated that in regard to some animosity or tension between,
Complainant, Senior Officer Specialist, and Secretary, he had not been approached “on anything
specifically, but I do know that [Secretary] and [Senior Officer Specialist] are sisters, so I don’t
know if that has anything - - - any bearing on it, but I haven’t been approached by either of those
staff at all.”
AW further stated “neither of these employees have come to me, or their supervisors have come
to me and saying that there is an issue…[of] someone’s alleging a complaint. 	If there was, I
definitely, you know, would intervene on it, but no one has come forward and told me anything.”
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support for the AJ’s determination in the context of a harassment claim, that the
responsible management officials clearly articulated legitimate explanations for the disputed
actions. Beyond her bare assertions, Complainant has simply provided no evidence to support her
claim that her treatment was the result of her sex or prior EEO activity. Here, the preponderance
of the evidence does not establish that the management officials involved were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.2
2 We note that in response to Complainant’s appeal, the Agency argued that Complainant’s appeal
was premature. 	Because we affirm the Agency’s final order adopting the AJ’s finding of no
discrimination, we find it unnecessary to address alternative dismissal grounds (i.e. premature
appeal).

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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