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EEOC finds BOP Workplace Retaliation Widespread

A U.S. Equal Employment Opportunity Commission's (EEOC) Office of Federal Operations (OFO) has issued a report that finds that a culture of "widespread retaliation" exists against employees who file EEOC complaints. The November 2010 report, which was compiled over a three-year period, and incorporated survey forms sent to all Federal Bureau of Prison (BOP) employees, found that serious issues, indicating an "environment of intimidation,” are pervasive within the BOP.

BOP prisoners have often complained of retaliation after filing administrative complaints and federal civil rights lawsuits regarding their grievances. This OFO study is the first to indicate that BOP employees are themselves often subject to harassment after they complain of EEOC violations. Approximately 10% of the BOP's 35,000 employees responded to the survey, and dozens more were confidentially interviewed at three institutions by EEOC personnel.

The BOP Central Office staff in Washington, D.C. took issue with many of the EEOC's initial findings, and requested additional time to respond to the study, delaying its release, but the EEOC noted that the "BOP generally does not dispute the existence of troubling retaliation issues or that the draft recommendations we shared were sound and would be useful once implemented. Rather, BOP's main objection to the draft appears to be EEOC's conclusion that retaliation is 'widespread.'" Based upon an objective reading of the results of the survey and employee interviews, clearly the use of the word "widespread" is accurate.

In Fiscal Year (FY) 2005, retaliation allegations at the BOP were 73.7% compared to 39.1% government wide. Although the BOP objected to some of the findings based upon the 10% employee response rate, results from the confidential interviews at the three BOP facilities indicated that many employees were frightened to even respond confidentially to the survey, fearing adverse effects on their work environment, as well as future promotion possibilities. One retired BOP employee said the fact that the survey required respondents to give their name on the survey probably made them doubt that their responses would be truly anonymous.

An on-line article that first appeared on Forbes Magazine's web site noted that the OFO team included a number of quotes from current and former BOP employees, detailing the fear of retaliation: "I am not going to say that harassment has not happened here ... but there are no official reports of it”, “Once you file a complaint management will immediately punish you, “It's common knowledge that if you go against the grain something will happen to you.” The article also noted: "One prison employee who was interviewed by OFO's team returned a second time to the evaluation to report that the warden had reported that he had a list of everyone who was going to speak to the OFO evaluation team... the latter example occurring in the middle of the investigation."

The article also cited the example of a former BOP employee, Shirley Minter-Smith, who had filed suit against her former employer for discrimination and retaliation. After a trial in 2007, a jury awarded her damages and back pay for approximately $500,000, plus additional pension benefits, and an award for legal fees.

An attorney representing other plaintiffs who have suffered retaliation at the hands of the BOP has successfully had the action certified as a class action before the EEOC. Objections were filed by the BOP and the resolution might take years to the EEOC's heavy caseload, but Mosby estimated the number of current and former employees of the BOP who might qualify for relief at "well over 2,000." Eric Holder, the U.S. attorney General, is one of the named defendants in that case.

The former director of the BOP, Harley Lappin, who according to Forbes was in charge while "all of the above occurred," and himself is no stranger to legal controversy in his personal life, is now the Chief Corrections Officer at Corrections Corporation of America (CCA), a private prison contractor, and beneficiary of many lucrative contracts with the BOP, the Justice Department and the Department of Homeland Security (DHS). CCA is also not a stranger to lawsuits regarding alleged irregular treatment of prisoners.

The OFO Report, which runs approximately 50 pages, makes three specific findings of fact after reviewing the responses to its questionnaires and its interviews: "Finding one: there is widespread fear of retaliation among BOP employees; Finding two: BOP employees lack confidence in BOP's EEO program; Finding three: BOP employees are unfamiliar with the EEO process and their rights."

The OFO Report also makes five specific recommendations to improve the BOP's compliance with EEO laws and regulations. The first is that BOP's EEO office must be realigned, moved out of the Office of General Counsel, and the EEO Director of the BOP should report directly to the agency head. Secondly, the BOP must increase management support for the EEO, revise and reissue its EEO policies, provide mandatory EEO training, hold managers accountable individually for violations, and have an EEO counselor at each facility.

The third recommendation was that the BOP's headquarter EEO office must monitor its field operations, conduct counselor conferences, and conduct onsite facility reviews. The fourth recommendation was an important one, that the BOP should take steps to ensure confidentiality. The fifth and final recommendation was that the BOP should abolish its vouchering system, and enforce discipline within its system for EEO violations to ensure confidentiality and lack of retaliation for making complaints.

According to the OFO Report, the BOP can best ensure the fulfillment of its mission statement promising safe and humane treatment of prisoners and the protection of society by making sure that it treats its "talented, professional, well-trained, and diverse staff ... fairly ... [that] they work in an environment free from discrimination... staff maintain high ethical standards in their day-to-day activities ... [and] Staff are satisfied with their jobs, career opportunities, recognition, and quality of leadership."

Sources: “Final Program Evaluation Report, Federal Bureau of Prisons," U.S. Equal Employment Opportunity Commission (November 2010);

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