01986440
05-19-2000
Andrea Tabar-Keefe, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Andrea Tabar-Keefe v. Department of Justice
01986440
May 19, 2000
Andrea Tabar-Keefe, )
Complainant, )
)
v. ) Appeal No. 01986440
) Agency No. I-94-6484
Janet Reno, )
Attorney General, )
Department of Justice )
(Immigration and Naturalization Service), )
Agency. )
)
DECISION
On August 27, 1998, Andrea Tabar-Keefe (hereinafter referred to as
complainant) filed a timely appeal from the July 21, 1998, final decision
of the Department of Justice (Immigration and Naturalization Service)
(hereinafter referred to as the agency) concerning her complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
The appeal is timely filed<1> (see 64 Fed. Reg. 37,644, 37,659 (1999) (to
be codified and hereinafter referred to as 29 C.F.R. � 1614.402(a)))<2>
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (to be
codified as 29 C.F.R. � 1614.405). For the reasons that follow, the
agency's decision is AFFIRMED.
The issue presented in this appeal is whether the complainant has proven,
by a preponderance of the evidence, that the agency discriminated against
her on the basis of reprisal when she was suspended for five days in
July 1993.
Complainant filed her formal complaint on July 13, 1994. Following an
investigation, complainant was advised of her right to request a hearing
or an immediate final agency decision (FAD). She requested a FAD,
and the agency issued a FAD, finding no discrimination.<3>
At the time of the events herein, complainant was an Immigration
Inspector, GS-9, in Champlain, New York. She was issued a 15-day
suspension, reduced to five days, for falsification of government records
when she indicated proficiency in French and German and stated that she
had had certain other assignments. Because of discrepancies with her
answers on a prior form, an investigation was conducted by the Office of
Inspector General (OIG), which led to the suspension. Complainant alleged
that the agency's action was in reprisal for prior EEO activity.
In her statement on appeal, complainant addressed the merits of the
agency's charge that she falsified government records. She stated that
the definition of the terms, such as "proficiency," was not clear and
that she misunderstood some of the questions.
Complainant's claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973); Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). It is complainant's burden to demonstrate by a
preponderance of the evidence that the agency's action was based on
prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext
for discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
To address her claim of reprisal, complainant must establish a prima
facie case showing that: (1) she engaged in prior protected activity;
(2) the acting agency official was aware of the protected activity;
(3) she was subsequently disadvantaged by an adverse action; and, (4)
there is a causal link between the protected activity and adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
To support a finding of unlawful retaliation, there must be proof
that the acting agency official(s) took the action at issue because of
complainant's prior protected activity and sought to deter complainant
or others. EEOC Compliance Manual on Retaliation, No. 915.003 (May 20,
1998), p. 8-16.
Assuming complainant established a prima facie case, we find that the
agency articulated legitimate, nondiscriminatory reasons for its actions.
The agency's actions were based on legitimate considerations about
the veracity of complainant's answers to questions on an agency form.
Complainant has not demonstrated that the suspension was unwarranted
or that she was singled out for reprisal. Further, her justification
of her answers on the government form does not undermine the agency's
explanation or show that the suspension was taken in reprisal. We find
therefore that complainant has not shown that the agency's reasons for
its actions were pretextual.<4>
CONCLUSION
Accordingly, the agency's decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
05-19-00
Date Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________
1The record does not indicate when complainant received a copy of the
decision.
2On 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.
3For reasons unexplained in the record, complainant initially contacted
an EEO counselor in 1992 but did not receive an initial interview until
February 1994, wherein she raised this matter. Thereafter, investigation
of the instant complaint was not completed and sent to complainant
until February 1997. Finally, in February 1997, complainant requested
that the agency issue a FAD, but a FAD was not issued until July 1998.
No explanation is given for these delays.
4Having found no discrimination, complainant's claim for compensatory
damages is denied.