01991026
01-16-2002
Michelle K. Knapp-Huffman, Complainant, v. John Ashcroft, Attorney General, Department of Justice (Bureau of Prisons), Agency.
Michelle K. Knapp-Huffman v. Department of Justice
01991026
January 16, 2002
.
Michelle K. Knapp-Huffman,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice
(Bureau of Prisons),
Agency.
Appeal No. 01991026
Agency No. P-96-8935
Hearing No. 170-97-8449X
DECISION
Complainant timely initiated an appeal from the agency's final action
(FAD), concerning her equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
on the basis of disability (learning), when she was terminated as an
Information Receptionist during her probationary period.
BACKGROUND
The record reveals that complainant, an Information Receptionist at the
agency's Federal Correctional Institute (FCI) in Beckley, West Virginia,
filed a formal EEO complaint with the agency on June 11, 1996, alleging
that the agency had discriminated against her as referenced above. At
the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
According to the agency, complainant was terminated because of
job misconduct. More specifically, on or about February 22, 1996,
complainant was asked by Prisoner A, whether an individual by the name
of S was an inmate at the FCI. According to the agency, complainant
answered that she could not tell if S was an inmate at the FCI, because
she only had a sanitized list, and that if S was a witness security
(WITSEC) inmate, his name would not be on the list. The agency indicated
that this was a serious breach of security.<2> Complainant testified
that she only informed Prisoner A that she could not disclose whether
S was an inmate at Beckley. The Warden at the FCI made the decision to
terminate complainant's employment, after reviewing the statements of
complainant; Employee A, a legal instrument examiner; Manager A, the
Inmate Systems Manager; Prisoner A; and Lieutenant A, who conducted
an investigation of the incident, including receiving affidavits from
complainant, Employee A, Manager A, and Prisoner A.<3>
The AJ found that complainant had a learning disability, and that she
was a qualified individual with a disability. However, the AJ found that
complainant failed to establish a prima facie case, because her discharge
was not accomplished under circumstances that gave rise to an inference of
unlawful disparate treatment discrimination.<4> The AJ thus emphasized
that complainant was discharged due to misconduct, i.e., improperly
disclosing to an inmate the fact that she had a sanitized roster which
did not contain the names of WITSEC inmates. The AJ found that the agency
satisfactorily and credibly explained the seriousness of the misconduct.
Accordingly, the AJ found that the agency concluded that it was reasonable
for the agency to terminate complainant's employment. The AJ further
found, that even if complainant established a prima facie case, the
agency nevertheless articulated a legitimate nondiscriminatory reason
for its action, i.e., complainant's misconduct, and that complainant
failed to show pretext. While complainant also attempted to explain the
incident as a result of miscommunication, the AJ found that complainant's
disability did not involve a problem with communication, and that it
was highly unlikely that Employee A, Manager A, and Lieutenant A would
all misunderstand what complainant had said to them.
On appeal, complainant alleges, that the agency improperly declined to
provide Prisoner A as a witness or to disclose Prisoner A's location.
Complainant thus emphasizes that Prisoner A was her most reliable and
crucial witness, and the agency's action prevented her from proving her
innocence. Complainant also submitted another affidavit from Prisoner A,
essentially reconfirming his prior affidavit (see note 3, supra) that
complainant did not disclose security information to him, as alleged by
the agency. Complainant further argues that she did not disclose security
information to Prisoner A, as alleged by the agency, and that due to her
disability she conveyed the information to Employee A and Manager A with
a displaced syntax and was misinterpreted. Complainant additionally
asserts that Lieutenant A deliberately falsified her testimony. In
addition, complainant submits that discipline against other staff has
been very lenient compared to the termination suffered by complainant.
Complainant further argues that if complainant had compromised the WITSEC
procedure, it should have been changed, but still remains in effect.
ANALYSIS AND FINDINGS
Prisoner A as a Witness
Complainant alleges that the agency improperly declined to provide
Prisoner A as a witness or to disclose Prisoner A's location.
The AJ has independent authority under 29 C.F.R. � 1614.109(f) to request
the production of information or the attendance of witnesses. Indeed 29
C.F.R. � 1614.109(f) (1) provides that �[t]he complainant, an agency,
and any employee of a Federal agency shall produce such documentary and
testimonial evidence as the administrative judge deems necessary.� See
also 29 C.F.R. � 1614.109(f)(3) (providing for possible sanctions for
noncompliance with the administrative judge's requests).
Complainant had the responsibility to ask the AJ for an order to the
agency to disclose Prisoner A's location and to provide Prisoner A as
a witness. There is no indication that complainant made any such
request to the AJ. Accordingly, we see no merit in complainant's
allegation of error.<5>
Disparate Treatment
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
Committee for Mental Health for Jamaica Community Adolescent Program,
198 F.3d 68 (2d Cir. 1999); Swanks v. WMATA, 179 F.3d 929, 933-34
(D.C.Cir. 1999). Under this analysis, in order to establish a prima facie
case, complainant must demonstrate that: (1) she is an "individual with
a disability"; (2) she is "qualified" for the position held or desired;
(3) she was subjected to an adverse employment action; and (4) the
circumstances surrounding the adverse action give rise to an inference
of discrimination. Lawson v. CSX Transportation, Inc., 245 F.3d 916
(7th Cir. 2001). The burden of production then shifts to the agency
to articulate a legitimate, non-discriminatory reason for the adverse
employment action. In order to satisfy her burden of proof, complainant
must then demonstrate by a preponderance of the evidence that the agency's
proffered reason is a pretext for disability discrimination. Id.
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. U.S. Postal Service Board of
Governors v. Aikens, 460 U.S. 711, 713-14 (1983).
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission finds that substantial evidence supports the AJ's finding
that the agency did not unlawfully discriminate against complainant
on the basis of disability when she was terminated from her position
of Information Receptionist during her probationary period. In so
finding, the Commission assumes arguendo that complainant established
a prima facie case, but finds that the agency articulated a legitimate,
non-discriminatory reason for its action, i.e., complainant's misconduct,
and that the complainant failed to show pretext. It is undisputed
that the agency articulated complainant's misconduct as a legitimate,
non-discriminatory reason for its action. Accordingly, complainant had
the burden to show pretext. Our analysis follows.
Whether Complainant Disclosed the Alleged WITSEC Information to Prisoner A
Employee A and Manager A indicated that complainant told them, in
separate conversations, that she had disclosed the WITSEC information to
Prisoner A. Complainant argues that she did not disclose the security
information to Prisoner A, as alleged by the agency, and that due to her
disability she conveyed the information to Employee A and Manager A with
a displaced syntax and was misinterpreted. However, the AJ found that
there was no evidence that complainant had any communication disorder or
expressive language disorder, but rather that complainant's disability
concerned the methods of training or learning. Indeed, the AJ pointed
out that complainant's rehabilitation counselor's report indicated that
the significance of complainant's disability concerned the methods of
training or learning. Complainant has not provided any evidence to the
contrary, showing that her disability involved a communication disorder
or expressive disorder.
Lieutenant A also indicated that complainant told her that complainant
had told Prisoner A that she had a sanitized roster. Complainant asserts
that Lieutenant A's testimony was deliberately falsified. The AJ found
that there was no evidence upon which could be reasonably inferred
that Lieutenant A took any adverse action against complainant in her
investigation as a result of complainant's disability. Indeed, the AJ
found that there was no evidence of any discriminatory animus by Employee
A and Manager A, or Lieutenant A, against complainant because of her
disability which would motivate them to lie concerning their conversations
with the complainant, and that there was no evidence of any causal
relationship between complainant's disability and her termination.<6>
In affirming the finding of discrimination by the AJ, the Commission notes
that the credibility determinations of the AJ are entitled to deference
due to the AJ's first-hand knowledge, through personal observations,
of the demeanor and conduct of the witnesses at the hearing. Esquer
v. United States Postal Service, EEOC Request No. 05960096 (September 6,
1996); Willis v. Department of the Treasury, EEOC Request No. 05900589
(July 26, 1990). The AJ found that it was reasonable for the Warden to
conclude that complainant did, in fact, inform Prisoner A, that she had
a sanitized roster which did not contain the names of WITSEC inmates.
The AJ found that the Warden credibly explained at the hearing why he gave
more weight to the statements by Employee A, Manager A, and Lieutenant A,
than he did the statements of complainant and Prisoner A.
Comparative Discipline at the FCI
Complainant submits that discipline against other staff has been very
lenient compared to the termination suffered by complainant. The Warden
explained the serious consequences that could arise as a result of the
disclosure to an inmate of the fact that complainant had a sanitized
roster which did not contain the names of WITSEC inmates. The AJ found
the Warden's testimony to be credible. The Case Management Coordinator for
the FCI, Manager B, also prepared a memorandum discussing the seriousness
of the breach of security in informing an inmate that the information
receptionist had a sanitized list which did not include WITSEC inmates.
Additionally, the Warden's testimony was supported by the FCI's Chief
Correctional Supervisor, Manager C.
Complainant has failed to adduce sufficient evidence to show
valid comparators for purposes of showing that she was unlawfully
discriminated against on the basis of her disability. In order to be
considered similarly situated, the persons with whom the complainant
is comparing herself must be similar in substantially all aspects, so
that it would be expected that they would be treated in the same manner.
Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 68 (6th Cir. 1985);
Majahad v. Department of Labor, 915 F. Supp. 499 (D.C. MA 1996)(in
order to establish disparate treatment, comparators to the probationary
complainant were other probationary employees).
Complainant further argues that if complainant had compromised the WITSEC
procedure, it should have been changed, but still remains in effect today.
Given the agency's desire to keep the location of WITSEC inmates secret
from other inmates and the public, it is difficult to think of how the
agency could change its procedure in a meaningful and effective manner.
More importantly, an employer has the discretion to determine how best to
manage its operations and may make decisions on any basis except a basis
that is unlawful under the discrimination statutes. Furnco Construction
Co. v. Waters, supra; Nix v. WLCY Radio/Rayhall Communications, 738
F.2d 1181 (11th Cir. 1984). Thus, an employer is entitled to make his
own business judgments. The reasonableness of the employer's decision
may of course be probative of whether it is pretext. The trier of fact
must understand that the focus is to be on the employer's motivation,
not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012
n.6 (1st Cir. 1979).
CONCLUSION
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, we affirm the agency's final action.
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 16, 2002
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 A WITSEC inmate is an inmate that has cooperated with the government.
As a result, WITSEC inmates are at risk of retribution, including injury
and death by other prisoners. In order to help prevent harm to WITSEC
inmates, their location is not disclosed to other prisoners or the
general public.
3 In complainant's affidavits taken pursuant to Lieutenant A's
investigation, one indicated that it was Prisoner A who told her that
S was a WITSEC inmate, and another indicated that, to the best of her
recollection, she told Prisoner A that she could not tell him whether
or not an inmate was there, and that to the best of her knowledge she
did not remember if she said anything about a roster. Both Employee A
and Manager A stated, in their affidavits, that complainant told them,
in separate conversations, that complainant had informed Prisoner A she
could not tell if S was an inmate at the FCI, because she only had a
sanitized list, and that if S was a WITSEC inmate, his name would not be
on the list. Prisoner A, in an affidavit, stated that complainant only
told him that she could not answer his question about S. Lieutenant A,
in her affidavit, stated that complainant told her orally on numerous
occasions that complainant had told Prisoner A that she had a sanitized
roster, but that complainant refused to state this in an affidavit.
4 Complainant also argued that the agency did not accommodate her
disability, by failing to provide her with sufficient training to perform
the duties of the Information Receptionist position. The AJ found that
the issue of complainant's disclosure was not applicable to training,
since complainant denied disclosing the information and complainant knew
that such information was not to be disclosed. On appeal, complainant
has not argued that this finding was error.
5 The AJ did consider Prisoner A's affidavit taken pursuant to Lieutenant
A's investigation.
6 An employer is not required to excuse past misconduct even if it is
the result of the individual's disability. EEOC Enforcement Guidance
on Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act, No. 915.002, at 48 (March 1, 1999) (Reasonable
Accommodation Guidance). An employer is not barred from withholding
discipline or termination of an employee who, because of a disability,
violated a conduct rule that is job-related for the position in question
and consistent with business necessity. Id. at 47.