01A20945
01-13-2003
James Whalen, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Investigation) Agency.
James Whalen v. Department of Justice
01A20945
January 13, 2003
.
.
James Whalen,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation)
Agency.
Appeal No. 01A20945
Agency No. F-94-4644
Hearing No.160-98-8553X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of disability (back injury) and reprisal (prior EEO
activity) when he was unfairly subjected to an investigation of several
incidents by the agency's Office of Professional Responsibility (OPR).
Complainant also contends that the manner of the investigation was
improper and that, therefore, it was motivated by discrimination.
The record reveals that during the relevant time, complainant was
formerly employed as a Special Agent at the agency's New York Office
of the Federal Bureau of Investigation.<1> Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on December 5, 1994. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge (AJ) or alternatively, to receive a
final decision by the agency. Complainant requested a hearing and the
matter was assigned to an AJ. The AJ remanded the matter back to the
agency for a final decision on the merits due to complainant's failure
to prosecute his complaint.
In its final decision, the agency concluded that complainant was an
individual with a disability, based, in part, on the approval of his
application for disability retirement. The agency construed complainant's
allegations as asserting disparate treatment based on a disability and
not a denial of a reasonable accommodation. The agency concluded that
there were legitimate non-discriminatory reasons for its investigation
of complainant's activities which were not proven to be a pretext for
discrimination. Specifically, the investigation was based on management's
doubts that complainant was impaired to the extent that he claimed.
The investigation was conducted to monitor whether complainant's
activities were inconsistent with his claim of a back injury.
In addition, the agency concluded that complainant did not prove the
investigation was done in reprisal for his protected activity. According
to the agency, the investigation was not initiated by complainant's
supervisor who had been named in an EEO complaint filed by complainant,
but by other officials in the agency who were not shown to have knowledge
of his protected activity. The agency found that complainant did not
establish that its reasons for conducting the investigations were due
to his protected activity, but rather, were because of his misconduct
on the job.
Complainant makes no additional statement in support of his appeal.
The agency requests that we affirm its FAD.
ANALYSIS AND FINDINGS
In analyzing a disparate treatment claim under the Rehabilitation Act,
where the agency denies that its decisions were motivated by complainant's
disability and there is no direct evidence of discrimination, we
apply the burden-shifting method of proof set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. Queens
Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program,
198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). Hochstadt v. Worcester Foundation for Experimental
Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying the McDonnell Douglas principles in a reprisal case)
, and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997);Whitmire v. Department of the Air Force, EEOC Appeal
No. 01A00340 (September 25, 2000).
The prima facie inquiry may be dispensed with when the agency has
articulated legitimate 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).
Applying these principles to the instant case, the Commission finds that
complainant failed to establish the agency's reasons for investigating
his activities were a pretext for discrimination based on his disability
and his protected activity.
We assume for purposes of our analysis of complainant's disparate
treatment claim based on a disability, that complainant is an individual
with a disability within the meaning of the Rehabilitation Act.<2>
Complainant alleged that the agency acted with discriminatory intent
when it put him under surveillance beginning in November 1989 related to
allegations of his misuse of a FBI vehicle, and worker's compensation
fraud. At issue are the fruits of the agency's surveillance of
complainant's activities, including his improper use of a police parking
permit, eavesdropping on complainant's telephone conversation with his
lawyer and records obtained from the complainant's rental of a vehicle.
Complainant also contends the agency was motivated by discrimination when
the agency interviewed a special agent about complainant's psychological
condition in relation to allegations of sexual misconduct. Finally, at
issue is the agency's investigation of allegations by other employees
that complainant was improperly searching employees' desks and taking
documents.
We conclude from a review of the record that the agency's OPR
investigation was not motivated by discrimination on either basis.
According to complainant's own testimony, he described his dispute
with his supervisor concerning his refusal to assign him the use
of a government vehicle. Complainant acknowledged that his use of
a FBI vehicle on at least two occasions was without authorization.
Complainant also did not deny that he obtained and may have used an
expired New York City Police Department (NYPD) parking sticker without
proper authorization<3>. Despite his contention that the allegations
regarding the parking sticker were unsubstantiated, the evidence indicated
that a police parking permit was reported stolen from a FBI agent's
office which led to the investigation of complainant's activities. Thus,
complainant did not establish that the agency's reasons for investigating
his use of the NYPD parking sticker were a pretext for discrimination.
The record also revealed that complainant's ability to work after a
work-related car accident, was in dispute. According to the findings
of an EEOC AJ, the agency's physician contended that complainant's
medical condition could have been treated with surgery and that he was
able to work. This completely contradicted complainant's physician's
opinion that complainant was unable to work at all. During that time
period, the agency dispatched two special agents, who testified that
they were charged with the surveillance of complainant's activities
that may have been inconsistent with his claimed inability to work.
They testified that their investigations normally involved eavesdropping
on public conversations. The agency also argued that obtaining records
regarding his use of a rental car was done to examine complainant's
contention that he was unable to sit and drive for long periods of time.
Complainant contends that the agency was motivated by reprisal and
discrimination based on his disability but other than his bare assertions,
he did not offer any evidence to support this. That is, complainant
did not demonstrate that the agency did not have a legitimate purpose
to determine his ability to work and that it was more likely motivated
by discriminatory animus.
In addition, during the course of the agency's investigation, two clerical
employees gave statements that they observed complainant going through
other employee's desks and taking documents. These two employees
also stated that complainant made crude sexual comments and gestures
towards them and generally made them uncomfortable in his presence.
These employees' accounts corroborated the fact that the agency had
legitimate reasons for investigating allegations of complainant's sexual
misconduct and other misconduct issues while he was an employee.
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 agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 13, 2003
__________________
Date
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
______________________________
1Complainant retired on disability in 1990.
2We also note that an EEOC AJ concluded in an another disparate treatment
case that complainant is an individual with a disability. EEOC Complaint
No. 160-94-8182X Agency No. F-91-4297-O.
3According to the evidence, an FBI supervisor was permitted to use a
police parking permit while on government business.