0120152406
12-14-2017
Celine D.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Celine D.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120152406
Hearing No. 520-2008-00341X
Agency No. FBI-2007-6345 & DJ No. 187-2-1012
DECISION
On June 11, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from a final Agency decision (FAD 2) dated April 21, 2015, concerning her equal employment opportunity (EEO) complaint alleging 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
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Special Agent at the New York Field Office, C-7 Squad (Organized Crime) in New York, New York.
On July 26, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her based her national origin/race (Native American), sex (female), and reprisal for prior protected EEO activity under Title VII when she was terminated on April 16, 2007.
Following an investigation, the Agency gave Complainant the investigative report and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). After Complainant requested, and then in July 2008 withdrew her request for a hearing, the Agency issued FAD 1 pursuant to 29 C.F.R. � 1614.110(b).
The record shows that Complainant signed affidavits on April 7, 2006 and June 2, 2006, which contained incorrect information about a confidential informant (CI). Complainant swore them in support of an application to the Supreme Court of the State of New York for eavesdropping warrants on two cell phones used by subjects of an investigation of an alleged criminal enterprise. In July 2006, Complainant's supervisor (the Supervisor of Squad C-7) referred this matter to the Administrative Division, who in turn referred it to the Inspection Division, FBI Headquarters. After investigating whether Complainant made false and misleading statements in the affidavits intentionally (willful misconduct) or was inadvertently incorrect, the Inspection Division in August 2006, forwarded its investigation to Agency's Office of Professional Responsibility (OPR) for adjudication.
In October 2006, OPR sent the Inspection Division's investigative results to the Agency's New York Office with instructions to review them and complete "Douglas Factors" for Complainant, i.e., mitigating and aggravating factors used to determine penalty. In so doing, the New York Office solicited input from Complainant's prior supervisor (S1). Prior to being reassigned to Squad C-7, Complainant was assigned to FBI's Brooklyn-Queens Metropolitan Resident Agency, Organized Crime Branch, C-16 Gambino Squad. S1 supervised Complainant there for about six years until she transferred to Squad C-7 in March 2015. In 2005, prior to her reassignment, Complainant had filed an EEO complaint alleging that she was harassed based on her race/national origin when S1 made disparaging remarks. As partial resolution of this complaint, Complainant was reassigned to Squad C-7. In giving his input on the Douglas Factor of Complainant's past work record, S1 said that in the Squad she created tension and did not have a good reputation; did not have a good work effort, was reckless with the truth, abrasive and short tempered, alienated most people, and on a scale of 1 to 10, her dependability was a 5.
In December 2006, OPR proposed removing Complainant. OPR charged that Complainant violated FBI Offense Code 2.6 (Lack of Candor/Lying Under Oath) in the affidavits, and violated FBI Offense Code 2.5 (Lack of Candor/Lying - No Oath) when questioned by her supervisors about the affidavits. OPR wrote that under FBI's Offense Table and Penalty Guidelines, the standard penalty for violating Code 2.6 is dismissal, and mitigation is unavailable (the standard penalty for violating Offense Code 2.5 is less than removal). Complainant exercised her right to request a hearing before OPR. Following the hearing, Deciding Official 1 in OPR issued a decision dated March 27, 2007, sustaining the above charges and terminating Complainant.
In FAD 1 (October 2009), the Department of Justice (not the FBI) found that S1's negative statements about Complainant on the Douglas Factors was inconsistent with the very complimentary things he wrote about her prior to her filing an EEO complaint accusing S1 of harassing her. The Agency observed that in an August 2004 email recommending Complainant for a within-grade increase, S1 described her as an outstanding agent who was superior in all critical elements, and in an addendum, praised her industriousness, creativity and insight and excellent relationship with various units and organizations. S1 also wrote that Complainant possessed an excellent potential for promotion and strongly recommended her for the relief supervisor position. The Agency observed that despite S1's inconsistent assessments, the EEO investigator did not interview him about his comments, nor others on this.
The Agency found in FAD 1 that the effect S1's statements had on the OPR proposing official and deciding official raised a serious question on whether retaliatory animus was a motivating factor in OPR's decision to terminate Complainant - in other words, whether the deciding official's decision was based in part or tainted by S1's possible retaliatory bias. The Agency found that due to the inadequate EEO investigation, the record contained insufficient rebuttal evidence to hold that S1's negative assessment on Complainant was accurate, and it was unclear if the OPR deciding official would have made the same decision absent S1's comments.
The Agency found that Complainant was not discriminated against based on her race/national origin and sex when she was terminated, but that reprisal was a factor during the FBI OPR "hearing," and this was discriminatory. The Agency ruled that as a prevailing party Complainant was entitled to compensatory damages, attorney fees and costs, and directed the FBI to process these matters and post a notice consistent with 29 C.F.R. � 1614.501. The Agency vacated the OPR "disciplinary hearing" that "resulted" in her termination, and directed "if necessary" that it be conducted again by someone who was not influenced by S1 or who had the benefit of more complete information on Complainant's prior work and credibility. Complainant did not exercise her right to appeal FAD 1 to the EEOC.
Thereafter, the FBI instructed the Executive Assistant Director of the Human Resources Branch - outside OPR, to be the decision maker (Deciding Official 2) on whether to terminate Complainant. Complainant made additional written submissions and had a second oral presentation. On July 2, 2010, Deciding Official 2 sustained the charges in the proposed removal, and did not reinstate Complainant. He found that the standard penalty for violating Offense Code 2.6 is dismissal, and mitigation was unavailable. Complainant appealed this decision to FBI's Disciplinary Review Board, which on May 8, 2014, affirmed Deciding Official 2's decision to terminate Complainant.
The Department of Justice (not the FBI) then issued FAD 2 on April 21, 2015. Therein, it found that given that Deciding Official 2, without the input S1 provided, reached the same conclusion that Complainant should be terminated, and his decision was sustained (by the Disciplinary Review Board), the record now shows she would have been terminated even absent S1's negative input.
As relief for the discrimination found in FAD 1, the Agency in FAD 2 awarded Complainant $25,000 in nonpecuniary damages and $29,325.51 in attorney fees and costs. Specifically, the Agency recounted that Complainant requested $30,120.51 in attorney fees and costs, $25,512.50 of which was for fees. The Agency awarded all costs and $24,717.50 in fees - a $795 reduction.
The instant appeal followed. On appeal, Complainant argues that OPR's decision to terminate her was tainted by S1's retaliatory comments, and this taint was not lifted by using a second fact-finder - Deciding Official 2 - because he works for the FBI and was subordinate to Deciding Official 1. She argues that because her termination was infected by S1's retaliation (and hence violated Title VII), she is entitled to back pay with benefits. She argues that she incurred $200,000 in nonpecuniary damages for emotional distress. Complainant, who is represented by counsel, makes no specific argument regarding the Agency's award of attorney fees.
In opposition to the appeal, the FBI argues that Deciding Official 1 led OPR, that Deciding Official 2 led the Human Resources Branch, and Deciding Official 2 was not subordinate to Deciding Official 1. It submits a FBI organizational chart showing that Deciding Officials 1 and 2 were in separate offices that did not report to each other. The FBI argues that S1's input was removed from the file given to Deciding Official 2. It disagrees with the Department of Justice's award to Complainant of $25,000 in nonpecuniary compensatory damages in FAD 2, and argues she incurred no nonpecuniary damages since the FBI would have terminated her regardless of S1's input. The FBI requests that the award of $25,000 in nonpecuniary damages be vacated, or in the alternative not increased. Other than pointing out that on appeal Complainant makes no specific argument on attorney fees, the FBI makes no argument on fees. It agrees with the Department of Justice's decision not to award back pay.
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Here, the Agency explains that it terminated Complainant because she violated FBI Offense Code 2.6 (Lack of Candor/Lying Under Oath), which has a standard penalty of dismissal with no mitigation available. While Complainant contends that she did not lie under oath, we find that the Agency believed this to be so. In her Investigative Division affidavit, Complainant conceded that her representation in the wiretap affidavits that the C1 had an informant relationship with the FBI for approximately a year was inaccurate and contrary to what her co-case agent advised her to write. In her Investigative Division affidavit, the co-case agent said she told Complainant the CI had an informant relationship with the FBI for less than a month at the time of the first wiretap affidavit, and specifically told Complainant that representing it was a year would not be accurate. Further, in her Investigative Division affidavit, the co-case agent stated that when Complainant showed her a draft affidavit of the first wiretap affidavit for her review on about April 7, 2006, it made no mention of the duration the CI had an informant relationship with the FBI, but Complainant's final version, which she only learned about months later, indicated the duration was about a year.
Likewise, in her Investigative Division affidavit, Complainant conceded that her representation in the wiretap affidavits that the CI was in "continuous" contact with the leader of the criminal enterprise could be misleading, and that in reviewing the April 7, 2006, draft supplemental affidavit, her co-agent crossed out the word "continuous," and Complainant decided to leave it in. In her Investigative Division affidavit, the co-agent stated that after crossing out the word "continuous" she put in the word "periodic," and then crossed out that word. The co-agent was the CI's handler, and she provided a copy of her edits to the Investigative Division.
We agree with the Agency that its decision to terminate Complainant was not based on S1's input on the Douglas Factors. First, the Douglas Factors, while relevant to determining the penalty for Offense Code 2.5, are irrelevant to determining the penalty for Offense Code 2.6 since the penalty is dismissal, regardless of mitigating or aggravating factors. Further, the FBI redacted the input S1 gave in the file provided to Deciding Official 2, which added some distance to S1's input. The evidence that the Agency believed Complainant intentionally falsified the affidavits is persuasive and is supported by statements made by Complainant, her co-agent, the Investigative Division statement by Complainant's relief supervisor on Squad C-7, documents, and the fact that the Agency suspended the wiretaps after the referenced information Complainant put into the wiretap supplemental affidavits was brought to the attention of management.
Since Complainant has not proven she unlawful retaliation was a factor in her termination, she is not entitled to back pay with benefits and interest.
The evidence Complainant submitted to support her claim for nonpecuniary damages focuses on the effect of the sustained charges against her and being terminated, with no mention of the pain and suffering caused by S1's input on the Douglas Factors. Given this, we are unpersuaded by Complainant's argument that the $25,000 nonpecuniary compensatory damages awarded in FAD 2 should be increased. On the FBI's request that the EEOC vacate the award in FAD 2 altogether, we note that those in the Agency authorized to issue final decisions in the EEO complaint process have not rescinded FAD 2, and it remains the final decision in this case. Accordingly, the Agency's award of $25,000 in nonpecuniary compensatory damages is affirmed.
On appeal, the parties make no specific argument regarding attorney fees, and based upon our review of the record, we find that the Agency's award is supported by the record and is affirmed.
FAD 2 is AFFIRMED.
ORDER
The Agency is ordered to take the following remedial actions:
To the extent it has not already done so, within 60 calendar days of the date of this decision, the Agency shall pay Complainant's law firm $29,325.51 in attorney fees and costs, and pay Complainant $25,000 in nonpecuniary compensatory damages.
The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
December 14, 2017
__________________
Date
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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