03a50010
05-12-2005
Marie-Yolanda Moore, Petitioner, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Marie-Yolanda Moore v. Equal Employment Opportunity Commission
03A50010
May 12, 2005
.
Marie-Yolanda Moore,
Petitioner,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission<1>,
Agency.
Petition No. 03A50010
MSPB No. DA-0752-02-0181-I-3
DECISION
On December 22, 2004, petitioner filed a timely petition with the Equal
Employment Opportunity Commission asking for review of a Final Order
issued by the Merit Systems Protection Board (MSPB) concerning her claim
of discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. Petitioner, an
Investigator at the agency's El Paso Area Office facility, alleged that
she was discriminated against on the basis of reprisal when on September
21, 2000, she was issued a notice of proposed removal, subsequently
reduced to a 45 day suspension, effective November 26, 2001.
Background
On April 4, 2003, petitioner filed a mixed case appeal with the MSPB<2>.
Petitioner alleged, inter alia, that she was retaliated against for
engaging in prior EEO activity. In a pre-Hearing Statement petitioner
maintained that a management official (RMO1) in the Headquarters Office
who was involved in her discipline was the same management official
whom petitioner, in a letter she sent to the acting agency Chair on
September<3> 19, 1998, had accused of maintaining a racially segregated
workplace when RMO1 previously worked as the Director of the Dallas
District Office. See petitioner's January 7, 2003 Pre-Hearing Submission,
pp. 18-9, MSPB file, Volume 3, tab 16. She further alleged that another
management official (RMO2) who was responsible for issuing the decision
reducing the removal to a 45 day suspension reported to RMO1. Id.
The record shows that at that time, RMO2 was the Director of the San
Antonio District Office and as such was several levels above petitioner
in the chain of command. In addition, during her hearing petitioner
testified that she had filed a number of EEO complaints against various
management officials in �February or April, 2000,� Hearing Transcript,
April 9, 2003, (HT 1) p. 40. She testified that two of these complaints
were filed against her supervisor (RMO3) who issued the original notice
of proposed removal, one alleging that RMO3 threatened to charge her
with insubordination and the other alleging harassment. Id., pp. 42-3.
She also maintained that she was part of a class action EEO complaint
against the agency filed in Federal District Court in April 2001. Id.,
p.69. The record does not provide details regarding this class
complaint and does not indicate whom the class members identified as
the discriminating official(s). However petitioner indicated that the
class complaint �included all [discriminatory] actions,� id., p. 70,
against her prior to November 2000. Petitioner indicates that the
agency's disciplinary action is in retaliation for some or all of the
above protected activity.
After a hearing, the Administrative Judge found that agency officials
articulated legitimate, nondiscriminatory reasons for their action.
The AJ noted that petitioner was charged with conduct unbecoming a federal
employee in the performance of her duties based on three specifications.
One of the specifications<4> (Charge 1) alleged that during January 2000,
petitioner provided a Charging Party with an undated and unsigned copy
of a Cause Determination letter, thereby misleading him and his attorney
into believing the investigation was complete. Charge 1 further noted
that petitioner informed a respondent that she planned to recommend a
finding of a violation. Another specification<5> (Charge 2) alleged
that on May 24, 2000, while conducting an investigation at the Texas
Workers' Compensation Commission (TWCC), petitioner made statements
and behaved in a manner that gave members of the public the impression
that she was biased in favor of the Charging Party, leading the TWCC
to register a complaint with the agency alleging that petitioner
had not conducted herself in an objective or professional manner.
The final specification<6> (Charge 3) alleged that on June 8, 2000,
petitioner unfairly criticized her co-workers to members of the public
by implying to a group of potential Charging Parties that her co-workers
had improperly failed to take their charges. Charge 3 further noted
that petitioner improperly referred the potential Charging Parties to
complain to the media.
The AJ found that petitioner failed to establish that the agency's
reasons were pretext for discrimination. In this regard, the AJ noted
that petitioner had not shown that other employees who had no prior
involvement in the EEO process and who engaged in similar misconduct
were treated less harshly. Petitioner then petitioned the full Board
for review of the AJ's decision, asking the Board to reverse Charge 3
and remand the decision for a determination regarding whether the agency
would have imposed a lesser penalty based on the remaining two Charges.
Appellant's Petition for Review before the full MSPB.
In a decision dated November 24, 2004, the Board granted petitioner's
petition for review and affirmed the initial decision in part and modified
it in part. The Board upheld the 45 day suspension, and affirmed the
AJ's finding as regards Charges 1 and 2. As regards Charge 3, however,
the Board found that the agency failed to prove the Charge. Specifically,
the Board noted that the agency's case for this Charge �relied chiefly
on the written statement and hearing testimony of . . . [a co-worker
(CW1)],� MSPB Opinion and Order, p. 4, who overheard petitioner allegedly
criticize her co-workers to a group of potential Charging Parties and
refer them to the media. Id. The Board noted that petitioner denied
CW1's version of events and that contrary to the AJ's finding, the
written statements provided by the potential Charging Parties during
the investigation supported petitioner's version of events and not CW1's.
The Board further noted that the agency investigator (AI) charged with
looking into the allegations against petitioner testified at the hearing
that when she conducted a telephonic interview with one of the potential
Charging Parties (CP1) about the incident, CP1 told AI that petitioner
had told them to go to the media to complain about the agency. However,
the Board observed, according to AI's written report at the time, CP1
had merely said that petitioner had told them �that they should fight
and go forward to complain.� Moreover, the Board noted, CP1 provided a
statement almost three years later in which she denied ever speaking with
AI and that no one from the agency had ever told her to go to the media.
Finally, the Board noted, petitioner testified that she did not tell the
potential Charging Parties that her co-workers had failed to do their
job properly, and that it was another member of the potential Charging
Parties group (CP2) who made the remarks about going to the media.
The Board found petitioner's version of events related to Charge 3 to be
supported by the declarations of CP2 herself as well as another member
of the potential Charging Party group (CP3). Given the contradictions
between CW1's version of events on the one hand and those of petitioner
and CPs 1, 2, & 3 on the other, the Board found that �the AJ's credibility
findings (regarding CW1's testimony) are inconsistent with the weight of
the evidence.� Id., p. 7. Instead, the Board found CW1's testimony to
be not credible and further found that Charge 3 could not be sustained.
The Board further found, however, that the AJ's penalty finding was
sustained based on Charges 1 and 2, noting that these remaining Charges
were serious and �caused members of the public to question the agency's
impartiality and professionalism, even to the point of requesting
congressional inquiry.� Id., p. 8.
In the instant petition for review of the MSPB decision, petitioner
contends that, given the rejection of AI's testimony regarding Charge
3, the Board should also have �reevaluate[d] the question of EEO
retaliation,� Petitioner's Request for Review of MSPB Decision, p. 2,
regarding Charges 1 and 2. The agency responds that petitioner's argument
is flawed because it mistakenly presumes that the Board found that AI
was lying.<7> Furthermore, the agency contends, the Board's decision
only addressed Charge 3 because petitioner did not ask the Board to
review the AJ's findings regarding Charges 1 and 2. In any event, the
agency argues, the Board did explicitly find that, despite overturning
the AJ's finding regarding Charge 3, petitioner's defense of retaliation
was correctly rejected by the AJ and that the AJ's penalty finding was
sustained based on the two remaining Charges.
Analysis and Findings
EEOC Regulations provide that the Commission has jurisdiction over
mixed case appeals on which the MSPB has issued a decision that makes
determinations on allegations of discrimination. 29 C.F.R. � 1614.303
et seq. The Commission must determine whether the decision of the
MSPB with respect to the allegation of discrimination constitutes a
correct interpretation of any applicable law, rule, regulation or policy
directive, and is supported by the evidence in the record as a whole.
29 C.F.R. � 1614.305(c).
In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). A petitioner 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 reason was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978). Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s). Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981). After the agency has offered
the reason for its action, the burden returns to the petitioner to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria. Burdine, 450 U.S. at 253;
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Petitioner can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
at 802). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, and Hochstadt v. Worcester
Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of
Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), a
petitioner may establish a prima facie case of reprisal by showing that:
(1) she engaged in a protected activity; (2) the agency was aware of
her protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000).
As noted above, petitioner alleges that her protected activity
included sending a letter to the then acting Agency Chair accusing
RMO1 of race discrimination, filing two EEO complaints against RMO3,
and participating in a class action EEO complaint against the agency.
We note initially that we find that such actions by petitioner constitute
protected activity. See EEO Compliance Manual - Retaliation, 915.003,
� 8-3. Regarding RMOs 1 and 2, we find no nexus between petitioner's
prior protected activity and the disciplinary action. In this regard
we note that when asked why she believed RMO1 was involved in the
disciplinary action, and why she believed RMO1 was even aware of her
letter to the then acting Chair, petitioner was unable to provide
a persuasive response. HT1, pp. 26-7. Furthermore, the sending of
the letter in August or September of 1998 is too temporally remote
to establish a nexus with the agency's disciplinary action which was
initiated two years later. Nor has petitioner identified either RMO1
or 2, or any management official for that matter, as being named in the
class action complaint. Regarding RMO3, petitioner testified that he
was aware of her complaints against him because he was contacted by the
EEO counselor and because �statements were given . . . provided to him by
my witnesses.� Id . pp. 43-4. As petitioner's complaints against RMO3
were filed in �February or April, 2000,� id. p. 40, and the disciplinary
action was initiated in September 2000 by RMO3, we find that petitioner
has established a prima facie case of reprisal.
Having established a prima facie case, the burden shifts to the
agency to articulate legitimate, nondiscriminatory reasons for its
actions. Burdine, 450 U.S. at 253. We find that such reasons are
articulated in the agency's Proposed Notice of Dismissal and the Notice
of Decision. The burden thus returns to the petitioner to demonstrate, by
a preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria. Id. Following a review of the evidence,
we find petitioner has failed to meet this burden.
As noted above, Charge 1 alleged that petitioner provided a Charging Party
(CP4) with an undated and unsigned copy of a Cause Determination letter,
thereby misleading him into believing the investigation was complete.
In addition, petitioner allegedly informed a Respondent Party (RP)
that she planned to recommend a finding of a violation. Petitioner
maintains that she was unaware that she gave CP4 the unsigned cause
determination letter, that she did not do so intentionally, that such
conduct did not mislead him or his attorney as claimed by the agency,
that an agency official had already approved a finding of cause in the
case, and finally, that giving him the letter was appropriate behavior.
Regarding divulging the recommendation for a violation finding, petitioner
does not appear to deny that she informed RP of her planned recommendation
but essentially maintains that she did nothing wrong and that �its how
everybody else does it. . . . That's how they do it there . . . in our
office.� HT1 April 9, 2003, p. 90.
Petitioner's contentions regarding the Cause Determination letter are
simply implausible. The record shows that CP4 did receive an unsigned
and undated Cause Determination letter from petitioner, and further,
that receiving the letter led CP4 to believe that the investigation
was complete. After petitioner's contact with RP, she was taken off the
case and it was reassigned to another Investigator (CW2). In a memo, CW2
stated that CP4, in complaining to him about petitioner being removed from
the investigation, handed CW2 a copy of the Cause Determination letter
he said he had received from petitioner and said that she �has already
determined that the [RP] has violated the law.� MSPB file Volume 2,
tab 13, subtabs 4qqq and 4rrr. During the hearing before the AJ, CP4
testified that petitioner had given him the unsigned Cause Determination
letter, that he understood from this that the agency had come to a final
decision in his favor, and that when he subsequently learned that the
case was reassigned and the agency was going to issue a no cause finding,
he was so disappointed he complained to his Senators and his Congressman
about the way his case was handled. Hearing Transcript February 6, 2003,
(HT2) pp. 5-10.
While petitioner essentially maintains that she did nothing wrong
and the agency's disciplinary action is based on reprisal, she does
not provide any corroborative evidence to support her contention that
giving out unsigned Cause Determination letters prior to the completion
of an investigation was a common practice in her office. Furthermore,
such a contention is denied by RMO3 who testified that Cause Findings
must be signed by him. HT2, p. 115.
Charge 2 alleged that petitioner, while conducting an investigation at
the TWCC, made statements and behaved in a manner that gave members of the
public the impression that she was biased in favor of the charging party.
Specifically, petitioner allegedly said to TWCC employees that if TWCC
had done its job, she would not have to be there, and that when women
at TWCC complain, nothing is done. According to the Suspension Notice,
TWCC employees interviewed by petitioner said that she appeared biased
and seemed annoyed with their responses, her demeanor was badgering and
she seemed uninterested in hearing the �whole story,� leading the TWCC to
subsequently lodge a complaint with the agency stating that petitioner
had not conducted herself in an objective or professional manner.
Petitioner denied that her investigation of the TWCC was biased and
denied various statements attributed to her by various TWCC employees.
Petitioner, however, has not provided any reason explaining why the TWCC
employees would fabricate such allegations against her. To the extent she
maintains that the TWCC employee's statements are in retaliation for her
prior protected activity, we note that, as state employees of a separate
entity, any such retaliatory motive on their behalf is simply implausible.
Regarding Charge 3, the Board reversed the AJ's finding upholding
the Charge. The Board, however, made no findings addressing reprisal
discrimination for Charge 3. While the Board found that CW1's testimony
was not credible, there is nothing in the record to indicate that any
fabrications by CW1 were motivated by reprisal.
Petitioner has not shown that the charges against her in Charges 1 and
2 are untrue. Nor has she shown that, given the allegations against
her, the agency's action was a pretext for discrimination. In this
regard we note that, while she identified various coworkers whom she
believed had engaged in various infractions and yet received less severe
discipline than she received, she provided no corroborative evidence and
she did not identify any coworker who had engaged in the same number
of infractions as she had. See id., pp. 44-50. Nor did she indicate
that any such infractions by her coworkers were as severe as her own.
For example she gave no indication that any infractions by coworkers
resulted in Charging Parties registering a complaint with the agency
or writing letters of complaint to Congress. See Compliance Manual
Section 8 - Retaliation, 8-19 (Pretext may be shown through evidence
that employer treated the petitioner differently from similarly situated
employees or that the employer's explanation for the adverse action is
not believable). Accordingly, we find that petitioner has not met her
burden of establishing, by a preponderance of the evidence, that the
agency's articulated reason for its actions are a pretext for reprisal.
Finally, we note petitioner's argument in the instant petition for review
of the MSPB decision that, given the MSPB's rejection of AI's testimony
regarding Charge 3, the Board erred in not reevaluating the question
of EEO retaliation regarding the other two Charges. We are, however,
unpersuaded by petitioner's argument. We note initially that we disagree
with petitioner's characterization of the MSPB findings concerning AI's
statements as being fabrications. The Board, in fact, found that CW1's
testimony was not credible, see MPSB Opinion and Order, p. 7, but made
no such finding regarding AI. Furthermore, as we noted above, there
is no evidence of a nexus between petitioner's prior EEO activity and
AI's statements. Finally, AI's statements do not affect the agency's
articulated reasons for Charges 1 and 2. The agency's actions for those
Charges are fully supported by testimony and other evidence in the record.
Based upon a thorough review of the record and for the foregoing reasons,
it is the decision of the Commission to concur with the final decision
of the MSPB finding no discrimination. The Commission finds that the
MSPB'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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0900)
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
May 12, 2005
__________________
Date
1In the instant matter, the Equal Employment Opportunity Commission
is both the respondent agency and the adjudicatory authority. The
Commission's adjudicatory function is separate and independent from
those offices charged with the in-house processing and resolution of
discrimination complaints. For the purpose of this decision, the term
"Commission" or �EEOC" is used when referring to the adjudicatory
authority and the term "agency" is used when referring to the respondent
party in this action. The Chair has recused herself from participation
in this decision.
2Petitioner twice moved to dismiss her MSPB appeal without prejudice
and twice refiled her appeal, the second time on April 4, 2003.
3During the hearing petitioner indicated that the letter was sent on
August 19, 1998. Hearing Transcript April 9, 2003 (HT1), p. 22.
4Identified in the record as Specification 3. Agency Notice of Decision,
p. 4.
5Identified in the record as Specification 1. Id., p. 1.
6Identified in the record as Specification 2. Id., p. 3.
7The Board, in fact, found that CW1's testimony was not credible.