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