01991875
10-04-2001
James Lopez, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
James Lopez v. United States Department of Agriculture
01991875
October 4, 2001
.
James Lopez,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01991875
Agency No. 980041
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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. The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant contends that he was discriminated against
on the basis of national origin (Mexican) when: (1) agency management
officials verbally accused him of the theft of a government vehicle;
and (2) he received a formal letter of caution (LC) on September 4,
1997, referring to his use of the government vehicle as theft. For the
following reasons, the Commission VACATES the FAD and REMANDS the case
to the agency.
The record reveals that during the relevant time, complainant was
employed as an Archeologist, GS-193-09, at the agency's Forest Service,
Santa Barbara Ranger District. Complainant alleges that although he used
the vehicle at issue for government business, the agency nevertheless
referred to his use of the vehicle as theft. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on October 20, 1997. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a FAD
by the agency without a hearing. Complainant requested that the agency
issue a FAD.
In its FAD, the agency concluded that the complainant did not establish
a prima facie case of discrimination on the basis of national origin
and subsequently failed to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). Specifically, the agency maintained that the LC
issued to the complainant was not kept in his official personnel file
(OPF) and thus did not result in harm to the terms or conditions of
his employment. In the alternative, the agency found that assuming,
arguendo, that a prima facie case was established, no discrimination
occurred because complainant failed to show that its stated legitimate
reason for issuing the LC, namely, that complainant misused a government
vehicle and needed to be advised of the seriousness of the situation,
was pretext for discrimination. Complainant alleges on appeal that the
agency's investigation was inadequate as the agency refused to interview
witnesses that he requested.
Regarding the agency's assertion that complainant failed to establish
any adverse result in the terms or conditions of his employment, the
Commission finds that the agency incorrectly assumed that the LC was
inconsequential simply because it was not placed in his OPF. Although a
mere verbal exchange between supervisor and employee, without some showing
of an injury in fact, does not render the employee aggrieved, see Fuller
v. United States Postal Service, EEOC Request No. 05910324 (May 2, 1991),
the Commission has found that an employee can be aggrieved even though
an adverse written notation in the employee's record was later removed.
Nicosia-Wagner v. Secretary of Treasury, EEOC Request No. 01953234 (March
19, 1996). In other words, a person can suffer harm to the terms or
conditions of his employment resulting from a unfiled LC. As a result, we
disagree with the FAD's finding that complainant failed to state a claim.
In addition, within the structure of the three-tier disparate treatment
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the agency in the instant case maintains that if complainant
established his prima facie case, he did not carry his burden in
showing that the agency's stated legitimate reason was a pretext for
discrimination. However, after a review of the record, the Commission
disagrees with the FAD's finding on this point. We find that the
complainant's failure to meet his burden may be the result of the agency's
failure to conduct an appropriate investigation. In so finding, we note
that complainant alleged in his appeal statement that the agency refused
to interview a witness mentioned in his pre-investigation affidavit
who he alleged would be able to shed light on the relation between the
LC and management's pattern of discrimination against complainant,
as well as the agency's practice of not being truthful during prior
EEO investigations. Appeal Document, at 2. The agency maintained
that this witness's testimony �was not relevant to the issue at hand.�
Investigator's Memoranda to the File. Id. We find that if the statement
of the witness referenced by complainant is credited, then complainant may
be able to meet his burden in establishing that the agency's articulated
reasons were more likely than not a pretext for discrimination.
The agency has an obligation to interview witnesses with information
relevant to the complaint, including witnesses who may be able to provide
information favorable to the complainant. An investigation is considered
inadequate where persons identified by the complainant as relevant are
not interviewed by the investigator. See Nester v. United States Postal
Service, EEOC Request No. 0192802 (June 8, 1992). A through and proper
investigation requires that the witnesses specified by the complainant be
interviewed and that the affidavit of the witness at issue be submitted
in the record. As the investigation is presently inadequate, this case is
remanded for a supplemental investigation consistent with the ORDER below.
CONCLUSION
Therefore, after a careful review of the record, including and arguments
and evidence not specifically addressed in this decision, we VACATE
the agency's final decision and REMAND this case to the agency to take
remedial actions in accordance with this decision and ORDER below.
ORDER
The agency is ORDERED to undertake the following actions in accordance
with this decision:
(1) Within thirty (30) days from the date this decision becomes final,
the agency shall conduct a supplemental investigation with respect to
proposed witnesses put forth by complainant in his affidavit.
(2) When the supplemental investigation is complete, the agency will
provide complainant with a copy of the entire (original and supplemental)
investigative report containing all affidavits and other documentary
evidence, plus a summary of the evidence.
(3) Upon giving the complainant a copy of the entire investigative
report, it will inform the complainant of his right to request,
within thirty (30) calendar days, a hearing and decision from an EEOC
Administrative Judge (AJ) or an immediate final decision from the agency;
(4) If complainant does not respond within thirty (30) calendar days, the
agency will produce its final decision within thirty (30) calendar days
after the original thirty (30) calendar days expired. If the complainant
requests an immediate final decision, the agency will produce that final
decision within thirty (30) calendar days of the complainant's request.
(5) The agency is further directed to submit a report of compliance, as
provided in the statement entitled Implementation of the Commission's
Decision. The report shall include supporting documentation that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 submitted to the
Compliance Officer, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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)(Supp. V 1993). 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court
appoint an attorney to represent you and that the Court permit you to
file the action without payment of fees, costs, or other security. See
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, 794(c).
The grant or denial of the request is within the sole discretion of the
Court. Filing a request for an attorney does not extend your time in
which to file
a civil action. Both the request and the civil action must be filed
within the time limits as stated in the paragraph above ("Right to File
A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 4, 2001
__________________
Date