01A12147
04-07-2003
Luz M. Crespo, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Luz M. Crespo v. Department of Justice
01A12147
April 7, 2003
.
Luz M. Crespo,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A12147
Agency No. I-99-E127
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission AFFIRMS
the agency's final decision.
The record reveals that complainant entered on duty as a District
Adjudication Officer, GS-1805-5, beginning in March 1998, subject to a
one-year probationary period, at the agency's San Juan District Office
in San Juan, Puerto Rico (�facility�). By letter dated February 23,
1999, the agency's Personnel Officer (P1) terminated complainant's
employment. Complainant sought EEO counseling and subsequently filed a
formal complaint on July 23, 1999, alleging that she was discriminated
against on the bases of sex (female), religion (Protestant/Christian),
and reprisal for prior EEO activity<1> when, on February 23, 1999,
she was terminated during her probationary period.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of reprisal discrimination, in that complainant has
not engaged in prior EEO activity. The FAD assumed, arguendo, that
complainant established a prima facie case of discrimination based on
sex and religion, and found that the agency articulated legitimate,
nondiscriminatory reasons for the termination. Management stated
that complainant's termination did not result from any problem
with her performance, but from problems with her conduct; namely,
her anti-authority attitude, her reluctance to work overtime when
necessary or when asked, her inability to accept constructive criticism
from her supervisors, an incident of insubordination in November 1998,
and her incitement of other employees. The FAD additionally found that
complainant sometimes left people unattended at the end of her shift.
The FAD also addressed complainant's contention that the Assistant
District Director for Examination (A1), who is Catholic, commented on her
�Christian way of being,� and stated �My God, that woman has a strange
outlook and it is probably due to her religious beliefs.� The FAD found
that even if these comments were made as complainant alleges, this does
not warrant a finding of religious discrimination as to her termination.
The FAD found that the record contains insufficient evidence that the
agency's reasons are pretexts for management's sex-based or religious
animus.
On appeal, complainant restates arguments previously made. She denies
that she had the conduct problems that management describes. Complainant
additionally asserts that her supervisors often made improper jokes of
a sexual nature in the office, and that they also made comments about
complainant which were related to her religion. Complainant additionally
contends that the investigation was insufficient in that several of her
named witnesses were not interviewed. The agency requests that we affirm
its FAD.
As an initial matter we note that, as this is an appeal from a FAD issued
without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's
decision is subject to de novo review by the Commission. 29 C.F.R. �
1614.405(a). As to the claim that the investigation was inadequate,
we find that the investigative file contains sufficient information
upon which to determine whether or not the complained-of agency action
was the result of an unlawful discriminatory motive. The requirement
that an agency investigate complaints of discrimination is codified at
29 C.F.R. � 1614.108.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
She must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and 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).
Assuming, arguendo, that complainant established a prima facie case
of discrimination on the alleged bases, we find that the agency has
articulated legitimate, nondiscriminatory reasons for its action; namely,
complainant was terminated due to her conduct problems. In an attempt
to establish pretext, complainant initially denies that she had any
conduct problems, and lists several comments made by her supervisors
which she feels illustrate their animus toward her protected classes.
For purposes of our analysis, we will assume that complainant's
supervisors made the many inappropriate comments regarding religion and
sex which complainant and some of the witnesses have described. We,
nevertheless, find insufficient evidence in the record to indicate that
complainant's termination was motivated by management's animus toward
her because of her sex, religion or reprisal, as opposed to the reasons
that management articulated. Accordingly, we AFFIRM the FAD.
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
April 7, 2003
__________________
Date
1 Complainant alleges that although she did not file a prior EEO
complaint, she was retaliated against because her supervisors believed
that she was going to file a complaint.