Agency.

Equal Employment Opportunity CommissionSep 16, 2002
01A01773_02A20018 (E.E.O.C. Sep. 16, 2002)

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.