Melody Rosa, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01982024 (E.E.O.C. Mar. 9, 2000)

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.