01A01773_02A20018
09-16-2002
Agency.
Kelly D. Moore v. Health and Human Services
02A20018; 01A01773
09-16-02
.
Kelly D. Moore,
Grievant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(Food & Drug Administration)
Agency.
Appeal Nos. 01A01773 & 02A20018
Agency No. 99-07049
DECISION
Grievant timely initiated an appeal from a final arbitration decision
(FAD) concerning her grievance 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 reasons stated herein, the arbitrator's
FAD is affirmed. The record listed under EEOC docket number 01A01733 is
being administratively closed in this decision because it was incorrectly
docketed as an appeal from a final agency decision.
Grievant worked as a Consumer Safety Officer, GS-12, in the agency's
Salt Lake City, Utah, Resident Post, Denver District. On August 12,
1997, grievant was assigned a government vehicle for the sole purpose
of driving to Fruit Heights, Utah to conduct an official inspection.
While Fruit Heights is located to the north of grievant's office, agency
officials found grievant at a location in the opposite direction, after
she collided with another vehicle as she exited the local post office.
Grievant claimed that she needed to purchase gas because the gas
tank was only one quarter full. The record shows that there were gas
stations on grievant's direct route to Fruit Heights; however, grievant
started off in the opposite direction of her inspection site because she
wanted to go to her favorite gas station, which was south of the office.
Grievant claimed that she ran out of time after traveling two-thirds of
the three-mile distance to this particular gas station and pulled into
the post office in order to turn back north. The accident occurred as
grievant was attempting to pull out of the post office parking lot.
The agency investigated the accident. During the investigation, the
agency found that, contrary to grievant's explanation, the gas tank was
three-quarters full. Grievant also failed to comply with instructions to
assist the investigator by identifying and correcting inaccuracies she
indicated were present in the affidavit he drafted of her description
of the events leading to the accident. This led the agency to conclude
that grievant traveled to the post office to conduct personal business.
After reviewing the investigative record and grievant's actions during
the investigation, grievant's supervisor (S-1) proposed to suspend
grievant for a total of thirty-five (35) days on the basis of three
charges: (1) misuse of a government vehicle, (2) making false and/or
misleading statements, and (3) failure to assist and/or cooperate in
an official investigation. In response to grievant's written appeal,
grievant's second line supervisor reduced this suspension to thirteen
(13) days. Specifically, grievant was suspended for three days for the
misuse of a government vehicle, five days for making false or misleading
statements, and five days for failing to assist or cooperate with an
official investigation.
Through the employees' union, grievant grieved the discipline and claimed
that S-1 disciplined her in retaliation for her informing management
that he made sexual advances toward her during an agency conference in
the early 1990's, prior to S-1 becoming a supervisor.<1> The arbitrator
found that there was insufficient evidence to support grievant's claim
that S-1 disciplined grievant in response to her rejection, or that S-1
harbored a bias against grievant. The arbitrator then sustained the
agency's ten day suspension for grievant making false statements, and her
failure to cooperate during the investigation; however, the three-day
suspension for the misuse charge was not sustained because while the
evidence suggested that the agency needed to pursue an investigation, it
had not been adequately demonstrated that misuse occurred. This appeal
by grievant followed.
When a grievant relies on circumstantial evidence to prove an agency's
discriminatory intent or motive, there is a three step, burden-shifting
process. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The
initial burden is on the grievant to establish a prima facie case of
discrimination. Id. at 802. The burden then shifts to the agency to
articulate some legitimate, nondiscriminatory reason for its challenged
action. Id. If the agency is successful, the grievant must then prove,
by a preponderance of the evidence, that the legitimate, nondiscriminatory
reason articulated by the agency is merely pretext for its discrimination.
McDonnell Douglas, 411 U.S. at 804.
Because the agency articulated legitimate, nondiscriminatory reasons
for what occurred, i.e., grievant's misuse of a government vehicle,
making false and misleading statements, and failing to assist or
cooperate with an official investigation, we may proceed directly to
determining whether grievant satisfied her burden for showing pretext.
Haas v. Department of Commerce, EEOC Request No. 05970837 (July 7,
1999)(citing U.S. Postal Service Board v. Aikens, 460 U.S. 711, 713-14
(1983)). Grievant may do this in one of two ways, either directly, by
showing that a discriminatory reason more likely motivated the agency,
or indirectly, by showing that the agency's proffered explanation is
unworthy of credence. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981). Essentially, the fact finder must be persuaded
by the grievant that the agency's articulated reason was false and that
its real reason was discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 515 (1993).
The Commission finds that grievant failed to establish pretext. The record
is void of objective evidence which would suggest that S-1 disciplined
grievant because she contacted management about prior sexual advances
he allegedly made toward grievant. Instead, the evidence supports
a conclusion that management properly initiated an investigation,
and that it was grievant's ill-considered actions and inconsistent
statements during the investigation, rather than any retaliatory animus
by management, which led to her discipline.
Accordingly, after a review of the record in its entirety, including
consideration of all statements submitted on appeal, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the FAD because
the preponderance of the evidence of record does not establish that
discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the grievant 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).
GRIEVANT'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 grievance 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 grievance.
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
___09-16-02_______________
Date
1When grievant learned that S-1 was about to become a supervisor in 1996,
she told management officials what occurred and asked for some relief.
Agency management investigated grievant's claims, including informing
S-1 that grievant had made the claims against him; the agency later
found that grievant's claims did not rise to the level of harassment.
Subsequently, S-1 became grievant's supervisor.