03990120
03-31-2000
Petitioner, )
Adrian Bess v. Department of Defense
03990120
March 31, 2000
Adrian Bess, )
Petitioner, )
) Appeal No. 03990120
v. ) MSPB No. DC-0752-98-0744-I-1
)
William S. Cohen, )
Secretary, )
Department of Defense )
Agency. )
)
DECISION
INTRODUCTION
On February 10, 1999, petitioner timely filed a petition with the Equal
Employment Opportunity Commission for review of the final decision of the
Merit Systems Protection Board concerning an allegation of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. The Board found that the Department of Defense
had not engaged in discrimination as alleged by petitioner. For the
following reasons, the Commission concurs with the Board's decision.
ISSUE PRESENTED
The issue presented herein is whether the Board's determination that
petitioner failed to prove that the agency discriminated against her
based on sex and reprisal constitutes a correct interpretation of the
applicable laws, rules, regulations, and policy directives, and is
supported by the record as a whole.
BACKGROUND
Petitioner, formerly employed by the agency as a GS-0083-07 Police
Officer, was removed from her position on August 3, 1998. She alleges
that her removal was based on sex and reprisal. According to the agency,
petitioner was removed because of a shooting incident, discussed infra,
which occurred on January 15, 1997 and for misrepresenting a material
fact in connection with an official proceeding.<1>
The evidence in the file indicates that on January 15, 1997, two vans
were stolen from the Pentagon parking lot. Both vans were pursued by
several agency police officers, one of which was petitioner. The van
being pursued by petitioner was forced to stop at a roadblock. Once
petitioner's vehicle, driven by her partner, was parked, she struggled
with her seatbelt to get out of the car. As she was struggling, the
driver of the stolen van and the front passenger were apprehended.
Once petitioner was freed, she exited her vehicle and noticed that
the van had begun to drift toward her car. In an attempt to stop the
van from crashing into her police car, petitioner entered the vehicle,
which contained two other suspects in the back seat, with her gun drawn.
She aimed her gun at the head of one of the suspects. Shortly thereafter,
she discharged her gun into his head. That shot prompted other officers,
who were positioned outside of the van, to fire into the van's back seat.
As a result, both suspects received serious gunshot wounds.
During the initial investigation which followed the shooting incident,
all of the officers who fired their weapons were prohibited from dressing
in uniform and carrying their weapons. A few days later, the officers,
excluding petitioner and another officer (a male supervisor) were allowed
to return to their normal duties. By contrast, petitioner and the
other officer were placed on administrative leave duties pending further
investigation. After the initial investigation, it was determined that
petitioner's actions inside the van needed to be investigated further.
Similarly, it was determined that the male supervisor, whose weapon's
magazine contained unauthorized ammunition, needed to be investigated
further as well. During this investigation, petitioner stated, regarding
the gunshot to the suspect's head, that her gun discharged accidentally.
A second investigation was conducted only to consider petitioner's case
after the agency received a congressional inquiry. The congressional
inquiry was prompted by petitioner's August 19, 1997 letter to her
congressional representative. In the letter, petitioner stated that
she discharged her weapon into the suspect's head because he moved
suddenly, notwithstanding her orders that he remain still. By letter,
dated November 14, 1997, the agency invited petitioner and her attorney
to a meeting to discuss the apparent discrepancy.<2> As agreed to in
the meeting, petitioner provided the agency with a December 16, 1997
affidavit which fully explained her role in the shooting.
On June 19, 1998, petitioner was informed by her lieutenant of his
proposal that she be removed for firing her weapon without reasonably
believing that she or others were under an immediate threat of death or
serious bodily harm and for misrepresenting a material fact, via the
letter to her congressman, in connection with an official proceeding.
On August 3, 1998, petitioner was officially removed from her duties.
ANALYSIS AND FINDINGS
The Commission must determine whether the Board's decision, regarding
the allegation of discrimination based on sex and reprisal, constitutes
a corrective interpretation of any applicable law, rule, regulation or
policy directive and is supported by evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In the absence of direct evidence, a claim of discrimination is examined
under the three-part analysis originally enunciated in McDonnell
Douglas Corporation v. Green. 411 U.S. 792 (1973). See, Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F.Supp. 318
(D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to retaliation cases). For petitioner to prevail, she must first
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited consideration was a factor in the adverse
employment action. Id. at 802; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its action. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the petitioner bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
Sex Discrimination
Although the initial inquiry in a discrimination case usually focuses
on whether the petitioner has established a prima facie case, following
this order of analysis is unnecessary when the agency has articulated
legitimate, nondiscriminatory reasons for its actions. See Washington
v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In such cases, the inquiry shifts from whether the petitioner has
established a prima facie case to whether she has demonstrated by
preponderance of the evidence that the agency's reasons for its actions
merely were a pretext for discrimination. Id.; see also United States
Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).
In this case, the Commission finds that the agency has articulated
legitimate, nondiscriminatory reasons for its action. Specifically, the
agency contended that petitioner was removed for violating the agency's
General Order 2100.1, entitled Use of Force, which prohibits officers
from firing their weapons without reasonable belief that they or others
are under an immediate threat of death or serious bodily harm. The agency
also contended that petitioner was removed for misrepresenting a material
fact in connection with an official proceeding. During the investigation,
petitioner indicated that her weapon discharged accidentally. However,
in a letter to her congressman, she indicated that she intentionally
discharged her weapon because one of the suspects had suddenly moved,
in spite of her request that he remain still.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory event, petitioner now bears the burden
of establishing that the agency's stated reasons are merely a pretext
for discrimination. Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Petitioner can do this by
showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
We find that petitioner has failed to meet that burden. In her brief
to the Commission, she stated that the other officers (all males)
involved in the shooting were allowed to return to full duty, obtain
their weapons, and wear their uniforms within days of the incident.
She also stated that she was not permitted to carry her weapon, nor
was she allowed to wear her uniform. But, as the record indicates, the
other officers fired their weapons in response to hearing petitioner's
shot from inside the van, and they did so, unlike petitioner, pursuant
to agency policy. The record also indicates that the male supervisor,
the officer whose weapon's magazine contained unauthorized ammunition,
was removed, like petitioner, for violating agency policy. Consequently,
the Commission finds that the petitioner failed to show that the reason
articulated by the agency was a pretext for discrimination.
Reprisal
In order to establish a prima facie case of discrimination for an
allegation of reprisal, petitioner must show the existence of four
elements: (1) that she engaged in protected activity, e.g., participated
in a Title VII proceeding; (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,
Id.; 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).
The record indicates that petitioner engaged in protected EEO activity
in September 1992 and again in April 1994. The alleged discriminatory
event in this case, however, occurred almost four years later. As such,
we find that there was no causal connection between the protected activity
and the adverse employment action, and therefore, petitioner failed to
prove the existence of the fourth element. Because all four elements
must be proven in order to establish a prima facie case of reprisal,
we decline to consider whether or not petitioner proved the existence
of the first, second, and third elements.
CONCLUSION
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the Board's final
decision of no discrimination. The Commission finds that the Board's
decision constitutes a correct interpretation of the laws, rules,
regulations, and policies governing this matter and is supported by the
evidence in the record as a whole.
STATEMENT OF RIGHTS - ON APPEAL
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W1199)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court,
based on the decision of the Merit Systems Protection Board, WITHIN
THIRTY (30) CALENDAR DAYS of 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.
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 31, 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) calendars days of mailing. I certify
that the decision was mailed to petitioner, petitioner's representative
(if applicable), the MSPB and the agency on:
______________________________ ___________________________
1 Additionally, petitioner alleges that she was discriminated against
when she was issued a one-day suspension in January 1998 concerning
her use of agency e-mail for personal reasons. The one-day suspension
in not within the purview of the Board's jurisdiction, and therefore,
we decline to discuss the matter herein.
2 Initially, petitioner had stated that her gun discharged accidentally.
In the letter to her congressman, she stated that the suspect's sudden
movement caused her to shoot her weapon.