Kimberly Cullom-Curran, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 8, 2000
01970118 (E.E.O.C. Mar. 8, 2000)

01970118

03-08-2000

Kimberly Cullom-Curran, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Kimberly Cullom-Curran v. Department of Justice

01970118

March 8, 2000

Kimberly Cullom-Curran, )

Complainant, )

)

v. ) Appeal No. 01970118

) Agency No. F-94-4637

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

DECISION

INTRODUCTION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning her equal

employment opportunity (EEO) complaint, which alleged discrimination

in violation Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37, 659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

ISSUES PRESENTED

The issues presented are: (1) whether complainant has established by a

preponderance of the evidence that the agency discriminated against her

on the basis of sex (female) when it denied her request for a permanent

hardship transfer; and (2) whether the agency's transfer policy has a

disparate impact on female agents.

BACKGROUND

Complainant, a Special Agent with the agency's Federal Bureau of

Investigation (FBI), filed a formal EEO complaint alleging that the

agency discriminated against her as delineated in the above-entitled

statement, "Issues Presented." The agency investigated the complaint,

and advised complainant of her right to request either a hearing before

an EEOC administrative judge or an immediate final agency decision

(FAD). Complainant requested an immediate FAD. On September 4, 1996,

the agency issued its FAD finding no discrimination. It is from this

decision that complainant now appeals.

The record reflects that complainant was assigned to the agency's

Indianapolis office, during which time she met her future husband,

a deputy police chief of a neighboring town. Prior to her marriage,

complainant received orders transferring her to the agency's Los Angeles

office. Complainant requested, and was granted, a change in orders to

New York City, but subsequently changed her mind and stated that she would

prefer Los Angeles to New York City. After transferring to Los Angeles,

complainant received two temporary hardship details to Indianapolis.

While on detail, complainant requested a permanent hardship transfer to

Indianapolis based on the frail health of her husband's parents, both of

whom required close daily care. The agency denied complainant's request.

ANALYSIS AND FINDINGS

Disparate Treatment Discrimination

Complainant has alleged that the agency discriminated against her

based on her sex by denying her a permanent hardship transfer, while

affording such transfers to similarly situated male agents; in other

words, by subjecting her to disparate treatment based on her sex. In any

proceeding, either administrative or judicial, involving an allegation

of discrimination, it is the burden of the complainant to initially

establish that there is some substance to his or her allegation.

In order to accomplish this burden the complainant must establish a

prima facie case of discrimination. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973); see also Furnco Construction Corp. v. Waters,

438 U.S. 567, 576 (1978). This means that the complainant must present

a body of evidence such that, were it not rebutted, the trier of fact

could conclude that unlawful discrimination did occur.

Complainant identified several male special agents whom she alleged

received more favorable treatment with regard to inter-office transfers

generally, as well as one female agent whom she alleges received

a requested inter-office transfer as a favor to a male management

official with whom she was romantically involved. The issue accepted

for investigation, however, was whether the agency discriminated against

complainant with regard to her request for a permanent hardship transfer.

Complainant has not identified any male agent who was granted a permanent

hardship transfer, but she has identified a male agent whose transfer

was indefinitely delayed on a hardship basis. Complainant therefore has

established a prima facie case of sex discrimination with regard to that

agent (the comparative). See Smith v. Monsanto Chemical Co., 770 F.2d

719, 723 (8th Cir. 1985); Potter v. Goodwill Industries of Cleveland,

Inc., 518 F.2d 864, 865 (6th Cir. 1975) (comparative employee must be

similarly situated in all relevant respects). Information regarding

the other agents cited by complainant will be considered as background

information.

The burden now shifts to the agency to articulate a legitimate,

non-discriminatory explanation for its action. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981). In this regard, the

agency need only produce evidence sufficient "to allow the trier of

fact rationally to conclude" that the agency's action was not based on

unlawful discrimination. Id. at 257.

The agency explained that complainant's request was processed in

accordance with its established guidelines regarding inter-office

transfers. The agency first noted that complainant was aware at the

time she married that spousal employment was not a factor that would

be considered in transfers unless the spouse was also an FBI employee.

The agency noted that prior to requesting the hardship transfer,

complainant requested that her destination office be changed from Los

Angeles to New York City, citing money concerns, but after that request

was granted changed her mind and stated that she would go to Los Angeles.

With regard to complainant's claim that her presence was required in

Indianapolis on account of the frail health of her husband's parents,

the agency noted that complainant was aware of this situation prior to

her marriage and prior to her transfer to Los Angeles; that her husband

and sister-in-law were in a position to provide care to her husband's

parents (a finding contested by complainant); and that it was likely

that both parents would soon require placement in nursing homes, so that

provision of daily care would no longer be an issue. The agency found,

accordingly, that complainant's request did not rise to the level

of hardship that would be necessary to grant her transfer request.

The agency further noted that its Los Angeles office was difficult to

staff, and was short 23 agents at the time.

Regarding the other agents cited by complainant, only the comparative

is similarly situated, in that he requested that his transfer be held

in abeyance on account of his wife's medical condition. The record

reflects that the comparative's transfer was delayed for two reasons:

first, on account of his involvement as the Case Agent in an on-going

undercover operation; and second, because his wife was pregnant and was

experiencing complications for which she was under medical supervision.

This explanation is sufficient to meet the agency's burden.

Once the agency has articulated such a reason, the question becomes

whether the proffered explanation was the true reason for the agency's

action, or merely a pretext for discrimination. St. Mary's Honor Center

v. Hicks, 509 U.S. 502, 511 (1993). Although the burden of production,

in other words, "going forward," may shift, the burden of persuasion, by

a preponderance of the evidence, remains at all times on the complainant.

Burdine, 450 U.S. at 256.

Complainant cited a number of other male agents whom she alleged received

more favorable treatment, as well as a female agent whom she alleged

received preferential treatment as a favor to a male management official.

The agency explained, however, that the female agent was transferred on

account of the "common household policy," which provides for transfers

to keep married FBI employees together. In this instance, the two

employees were not yet married, but had declared their intention to

marry prior to the transfer being granted. With regard to the male

agents, the management official who interceded for complainant when she

requested a change in assignment to New York City stated that, while he

did not recall intervening in transfer assignments of two other agents

cited by complainant, he may have done so just as he did for her at her

request. The agency also explained that one of the cited male agents

was transferred to a particular office on account of his expertise in

white-collar crime, pursuant to a provision of the Crime Control Act of

1991; another was transferred on account of his leading role in a lengthy

undercover investigation which had ended, pursuant to existing FBI policy;

and a third agent had not, in fact, transferred, but had received two

details to work an undercover assignment. Based upon the foregoing,

the Commission concludes that complainant has not established that

the agency's explanation for the denial of her request for a permanent

hardship transfer was merely a pretext for sex discrimination.

Disparate Impact Discrimination

Under a disparate impact theory of discrimination, the employer's intent

is not the dispositive issue. See Griggs v. Duke Power Co., 401 U.S. 424

(1971). To establish a prima facie case of discrimination under this

theory, an individual must show membership in a protected group, and

must present statistical evidence showing that a particular employment

practice, though facially neutral, had a disparate impact on members

of that group. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,

996 (1988); see also Younger v. Dept. of the Interior, EEOC Petition

No. 03970029 (July 31, 1997) (finding that petitioner's separation

pursuant to a RIF did not constitute disparate treatment or disparate

impact discrimination based on race, sex, or age).

In this case, complainant has submitted no statistical evidence in support

of her claim. Rather, complainant relies on conjecture regarding the

impact of the agency's transfer policy on female agents who marry males

not employed by the FBI, based on the presumption that in such cases

the male spouse's career will be valued more highly than the female

spouse's career. Such speculation is insufficient to establish a prima

facie case.

CONCLUSION

Based upon a thorough review of the record, and for the foregoing reasons,

it is the decision of the Equal Employment Opportunity Commission to

AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 or WITHIN TWENTY (20) CALENDAR DAYS

OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). All requests and arguments must be

submitted to the Director, Office of Federal Operations, Equal Employment

Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).

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 (S1199)

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 (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:

March 8, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Equal Employment Assistant Date