0120090615
05-22-2009
Madeline S. Van Wagenen, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Madeline S. Van Wagenen,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120090615
Hearing No. 480-2007-00069X
Agency No. HS 06-CIS000124
DECISION
On November 25, 2008, complainant filed an appeal from the agency's
final order, dated October 27, 2008, 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. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
During the period at issue, complainant worked as an Asylum Officer
(AO) at the agency's Los Angeles Asylum Office. As an AO, complainant
received evidence from applicants for asylum; interviewed witnesses
offered on their behalf; and applied relevant legal standards to make an
assessment on the application for the Supervisory Asylum Officer (SAO).
On April 2, 2005, complainant interviewed a woman regarding the
application for herself and her children. The applicant's husband
had also applied, but his matter was before the Immigration Court.
The applicant's husband had accompanied the wife to care for the children
during his wife's interview. During the meeting, complainant interviewed
the husband.
Days later, the applicant hand-delivered a complaint letter to
complainant's managers. The Director received the letter, and spoke
with complainant's immediate supervisor (SAO). Complainant purportedly
interviewed the husband without obtaining his consent, in violation of
agency procedures. According to complainant, the Director said to SAO:
"I want her nailed for this." The SAO meet with complainant on April 15,
2005 regarding the incident. Soon thereafter, on May 6, 2005, the SAO
memorialized the April 2, 2005 incident and his meeting with complainant
in a memorandum entitled "Infraction of Performance Work Plan Element #6".
While complainant indicated that she would submit a rebuttal, she failed
to do so. On September 15, 2005, SAO issued a memorandum proposing
corrective action to be taken by complainant, namely reading assigned
materials. By fulfilling the recommended action, complainant would
avoid any negative consequences of the notice. Complainant, however,
did not follow the action. Subsequently, believing that she was being
subjected to reprisal for her prior EEO activity, complainant contacted
the EEO office. Informal efforts to resolve complainant's concerns were
unsuccessful.
Consequently, complainant filed the instant formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ held a hearing on July 30, 2008 and August
1, 2008. The AJ issued a decision, on September 24, 2008, finding no
discrimination.
As an initial matter, the AJ noted that it was not clear that complainant
had been harmed by the September 2005 Notice of Infraction and Corrective
Action. After the parties were asked to submit additional evidence,
the AJ determined that the claims alleged were whether complainant was
subjected to reprisal for prior protected activity when:
(1) in September 2005 she was issued a Notice of Infraction and Corrective
Action (Notice); and,
(2) In October 2005, she was issued a performance rating where one
element was decreased one level to a rating of "minimally successful".
Even after the claims were defined, the AJ continued to question whether
the complaint alleged sufficient harm to state a claim of unlawful
discrimination. Specifically, the AJ noted that the decreased rating
related to simply one element in complainant's October 2005 mid-year
review. The rating was due to complainant's failure to complete
the Corrective Action requested in the September 2005 memorandum.
According to the AJ, there was no evidence that the reduction in the
"Professionalism" element of her mid-year review was reflected in the
final rating of the year.1
As for the basis of reprisal, the AJ found that complainant's prior EEO
activity was too remote in time, issue and individuals. According to the
record, the prior activity stemmed from events that occurred in 1990-1991
at a different facility. None of management officials cited in the
instant matter were involved in the prior complaint. As of 2005, there
was no DHS record of prior activity by complainant. However, complainant
believed that the Director knew of her prior activity because he discussed
the outcome of her court case at an office party in March 2005.
Even assuming that complainant had established a prima facie case of
reprisal, the AJ concluded that the agency had presented legitimate,
non-discriminatory reasons for its actions. According to the SAO,
complainant interviewed the applicant's husband, who was not part of
her application, without the applicant's permission and in spite of
the fact that she did not offer him as a witness. Further, complainant
interviewed the husband regarding his application, which was pending
before the Immigration Court and that was outside her jurisdiction.
Complainant failed to inform the applicant or her husband that he
was under no obligation to be interviewed by complainant. Also, the
applicant was not informed that she could withdraw her application or
have it referred to the Immigration Court with complainant's negative
credibility determinations. Due to these infractions, the SAO issued
the Notice.
Moreover, the AJ noted that "[o]n at least fifteen separate occasions
between May 1996 and February 2002 complainant had been formally
evaluated/criticized for deficiencies or violations of procedures."
Even complainant admitted that during the Director's tenure, from
1998-2005, there were six external complaints about her.
While the agency presented a legitimate reason for the notice and
mid-year rating, the AJ found that complainant did no meet her burden.
The record did not contain evidence of pretext.
On October 27, 2008, the agency issued a final order adopting the AJ's
finding that complainant failed to prove that she was subjected to
discrimination as alleged. Complainant filed the instant appeal.
CONTENTIONS ON APPEAL
On appeal, complainant challenges the reasons presented in the Notice
and disputes the Director's hearing testimony. Complainant contends
repeatedly that there was a lack of instruction on agency policies,
particularly whether written consent was necessary or whether verbal
consent was sufficient. Complainant asserts that she was never asked if
she sought verbal consent from the husband. Complainant believes that
"Element 6", the subject of her infractions can easily be abused and is
used as an "alternative discipline."
According to complainant, the Director wanted her "nailed for something,
anything." Complainant noted that she got along well with the Director
for years, but this relationship changed when the Director asked her
about her prior EEO case. When, during a holiday party, complainant
explained to the Director that she had ultimately lost her case,
complainant believes that the Director "lost all respect for her . . . ."
In contrast, complainant states that "If he learned the opposite - that
complainant had won her case - he would have treated her with new-found
respect and the Notice of Infraction would not have happened."
Additionally, complainant contends that she was denied equal opportunity
during the investigation and the hearing. Specifically, complainant
asserts that the investigator failed to follow up on the "initial nexus
event", the March 16, 2005 cook-out, where she discussed the outcome
of her prior case with the Director. As to the hearing, complainant
argues that the AJ was not sufficiently knowledgeable about her case and
took over the questioning. The AJ's supervisor was the presiding AJ in
complainant's prior matter, and therefore complainant believed that AJ
in the instant case was prejudiced against her.
In response, the agency, makes reference to its hearing motions and the
AJ's decision, requests that the Commission affirm its decision.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
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).
First, to establish a prima facie case of reprisal discrimination the
complainant must present facts that, if unexplained, reasonably give
rise to an inference of discrimination. Shapiro v. Social Security
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a
reprisal claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The prima facie inquiry may be dispensed with, however, where the agency
has articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley
v. Department of Veterans Affairs, EEOC Request No. 05950842 (November
13, 1997); Pavelka v. Department of the Navy, EEOC Request No. 05950351
(December 14, 1995).
The Commission notes that the AJ in the instant matter aided the parties
in developing the record, presided over two days of hearing testimony, and
issued a lengthy and thorough decision. We find that the AJ conclusion
that complainant was not subjected to discriminatory reprisal is supported
by the record.
As noted by the AJ, we find complainant's attempts to establish a nexus
between her prior EEO activity and the events in September and October
2005 to be unpersuasive. The earlier matter stemmed from incidents
which occurred at another facility more than ten years before she filed
the instant complaint. Complainant herself focuses upon a conversation
she had with the Director in March 2005 at a St.Patrick's Day party.
The Director purportedly inquired about the outcome of her prior case,
and complainant explained that she had lost. After this exchange,
contends complainant, the Director's attitude changed and motivated
the actions in claims (1) and (2) approximately six months later.
The Commission however, does not find that the record supports
complainant's conclusion.
Moreover, the relevant management officials have presented legitimate
reasons for issuing the Notice, and reducing the rating on one element in
complainant's mid-year review. An asylum applicant who was interviewed
by complainant submitted a written complaint. After speaking with
complainant about the incident, complainant's supervisor concluded that
she had violated agency procedures during the processing of the applicant.
While complainant may dispute various aspects of the Notice and rating,
(i.e. whether the agency policies permitted obtaining verbal consent) and
challenge the Director's expertise in the area, she has not established
that the agency's reasons were pretext to mask discriminatory animus.
Therefore, the Commission finds that the agency's decision finding no
discrimination was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we hereby AFFIRM the
agency's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
May 22, 2009
__________________
Date
1 The final rating was completed by another supervisor.
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0120090615
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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