01982024
03-09-2000
Melody Rosa, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Melody Rosa v. Department of Justice
01982024
March 9, 2000
Melody Rosa, )
Complainant, )
) Appeal No. 01982024
v. ) Agency No. M956362
)
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
on the basis of reprisal (prior EEO activity) in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.<1> Complainant alleges she was discriminated against when the
agency conducted an internal investigation against her. The appeal
is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659 (1999)
(to be codified at 29 C.F.R. � 1614.405). For the following reasons,
the Commission affirms the FAD.
ISSUE PRESENTED
The issue presented is whether complainant has established, by
preponderant evidence, that the agency discriminated against her on the
bases of reprisal.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Deputy United States Marshall, at the agency's Western
District of Michigan facility. In April 1993, complainant transferred
to the agency's Northern District of Illinois facility. Around this
time frame, complaint was identified as a witness in a co-worker's
EEO investigation.<2> EEO investigators interviewed the complainant
in February and September 1994.<3> Complainant alleged that in 1994
the agency retaliated against her for speaking against her former
supervisor and conducted an internal investigation. This investigation
regarded alleged misuse of a Government Owned Vehicle (GOV) and misuse
of government time by the complainant in 1991. A co-worker reported
the misuse of the GOV and government time to her former supervisor on
January 26, 1994. The investigation began November 16, 1994.
Believing she was a victim of discrimination, complainant sought EEO
counseling. Subsequently, she filed a complaint on March 27, 1995. At
the conclusion of the investigation, complainant requested that the
agency issue a final agency decision.
The FAD concluded that complainant failed to establish a prima facie
case of reprisal discrimination. Specifically, the agency found that the
complainant did not establish a nexus between the protected activity and
the investigation. Also, the agency found that the record demonstrated
a legitimate, non-discriminatory reason for the investigation.
On appeal, complainant contends that the agency failed to consider a
number of her arguments. The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission agrees with the
agency that complainant failed to establish a prima facie case of
reprisal discrimination. In order to establish a prima facie case
of discrimination for a claim of reprisal, complainant must show:
(1) that she engaged in protected activity; (2) that the alleged
discriminating official was aware of the protected activity; (3) that
she was disadvantaged by an action of the agency contemporaneously with
or subsequent to such participation; and (4) that there is a causal
connection between the protected activity and the adverse employment
action. Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976);
see also Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985);
Burris v. United Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th
Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
If the agency has articulated a legitimate, nondiscriminatory reason
for the action at issue, the factual inquiry can proceed directly to the
third step of the analysis under McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), the ultimate issue of whether complainant has shown by
a preponderance of the evidence that the agency's actions were motivated
by discrimination. U.S. Postal Service Bd. of Governors v. Aikens, 460
U.S. 711 (1983); Padilla v. Department of the Air Force, EEOC Request
No. 05940634 (June 27, 1995); Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of
Health and Human Services, EEOC Request No. 05900456 (June 8, 1990). We
find that the agency has articulated legitimate, nondiscriminatory
reasons for the investigation. See Burdine, 450 U.S. at 253.
Complainant may still prevail, however, by demonstrating, by a
preponderance of the evidence, that the agency's articulated reasons were
not the true reasons for the challenged employment decisions but were
pretexts for unlawful discrimination. Complainant can do this either
directly, by showing that discriminatory reasons more likely motivated
the agency, or indirectly, by showing that the employer's proffered
explanations are unworthy of credence. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
The Commission finds that complainant failed to establish a prima facie
case of reprisal discrimination. In reaching this conclusion, we note
that the complainant failed to demonstrate a nexus between the protected
activity and the investigation. She proved that she provided witness
statements during an EEO investigation, that the agency officials knew of
her involvement, and that she was investigated by the agency. However,
the investigation pre-dated the protected EEO activity. The agency
initiated the investigation on January 26, 1994. The complainant
did not provide testimony for her co-worker's investigation until
February 1994 and then again in September 1994. The complainant argues
that she was involved in her co-worker's investigation since 1993.
Complainant's Supporting Brief on Appeal vaguely mentions an interview
with an agency official (who was not a part of the EEO investigation) some
time in 1993. However, the record does not further support her argument.
Without additional evidence, the complainant has failed to prove that
the investigation was connected to her protected activity.
Even assuming arguendo, that complainant presented In addition,
the Commission finds that the complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination. The agency stated that
the investigation was initiated after a former co-worker provided
statements to a former supervisor. On January 26, 1994, the day the
supervisor heard these statements, he forwarded the information to the
appropriate investigators. Nothing in the record indicates that the
supervisor initiated the investigation or forwarded the information to
discriminate against the complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
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:
03/09/00
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:
_____________ _______________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 The co-worker filed two complaints against the former supervisor.
The first complaint involved sexual harassment and a hostile work
environment; the second complaint involved non-selection.
3 One of the EEO investigators testified that the February 1994 interview
did not pertain to the co-worker's sexual harassment and hostile work
environment claims. The investigator stated that he and the complainant
discussed allegations of employees who were not performing their official
duties. Since the record is vague on this matter, the Commission will
consider the February 1994 interview as protected EEO activity.