EEOC Appeal 2020001392

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Earlie P.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 2020001392
Hearing No. 410-2018-00343X
Agency No. BOP-2017-0959
DECISION
On December 3, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 30, 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 Lieutenant at the Agency’s United States
Penitentiary in Atlanta, Georgia.2
On August 21, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her based on 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 retired from Agency employment effective August 31,
2017.

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on July 21, 2017, the Captain reassigned her from her post of Airlift Lieutenant to Morning
Watch Operations, due to a bus accident during an airlift.
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 AJ
reviewed the entire hearing record in the instant case as well as conducting an Initial Conference
with the Agency and Complainant to afford them the opportunity to supplement the record. The
AJ determined that development “of the record is unlikely to lead to a finding of discrimination,
and preponderance evidence fails to show that Complainant was subjected to discrimination.” On
September 23, 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. 	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. 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 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.
A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie of discrimination by presenting facts that, 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

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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 on the basis of a prohibited reason. 	See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
During the relevant period, Complainant was employed by the Agency as a Lieutenant at the
United States Penitentiary in Atlanta, Georgia. Complainant had held the position of Lieutenant
since 2012, and was employed by the Agency for approximately over 20 years before her
retirement. The Captain was Complainant’s second-level supervisor.
Complainant claimed that on July 21, 2017, the Captain reassigned her from her post of Airlift
Lieutenant to Morning Watch Operations due to a bus accident during an airlift. Airlift Operations
assigned Complainant to transport inmates from the penitentiary to the Atlanta airport via bus and
while exiting the institution, the bus scraped the lower wall.
Complainant claimed that there have been several male officers and supervisors involved in bus
accidents but were not removed or did not receive any type of discipline.
The Captain explained, however, that if an accident is of an employee’s fault or negligence, the
employee can be removed from his or her position. 	In the instant case, the Captain noted that
Complainant was a non-bargaining correctional supervisor and “management has the right to
assign and re-assign positions and responsibilities.” He noted that when he informed Complainant
that she would be reassigned, she felt that such action was not equitable. 	The Captain stated
informed Complainant that “the accident was avoidable….” Furthermore, the Captain placed
Complainant on notice that she would be suspended from driving the bus “for a period not to
exceed 30 days.”
Complainant asserted that several male officers and supervisors involved in bus accidents were
not removed or did not receive any type of discipline. 	The Captain acknowledged a named male
officer was reassigned after driving through a sally port at a Federal Correctional Institute in
Alabama causing extensive damage.3 The Captain also noted another named male officer had a
bus accident. Specifically, the Captain noted that during a review of the accident, the officer in
question used defensive driving techniques and saved the bus from a direct head on collision. The
Captain found that in that accident, the bus did sustain some cosmetic damage but it was
unavoidable and that the staff member safeguarded the staff and inmates on that bus.
3 A sally port is a secure and controlled entry way to a federal correctional institution.

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Moreover, the Captain stated that Complainant’s sex was not a factor in his decision to reassign
her post of Airlift Lieutenant to Morning Watch Operations.
The Associate Warden stated at that time he was notified by the Captain that the bus Complainant
was driving “had run into the arch in front of the institution and continued on to the airport and did
not stop. 	Then, we had to have our medical department go to the airport to conduct medical
assessments on each inmate on the bus before the U.S. Marshall would take custody of the
inmates.” 	He noted that the Captain reassigned Complainant because of the bus accident.
Furthermore, the Associate Warden asserted that the Captain did not take disciplinary action on
Complainant and that he “exercised his duties as a supervisor/management to assign/reassign her
position.”
Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination. Beyond her bare assertions, Complainant has simply provided no evidence
to support her claim that her treatment was the result of her sex.
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment,
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).

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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.
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
September 30, 2020
Date