01A13210
03-14-2002
Barbara A. Hopkinson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service), Agency.
Barbara A. Hopkinson v. Department of Justice
01A13210
March 14, 2002
.
Barbara A. Hopkinson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service),
Agency.
Appeal No. 01A13210
Agency Nos. I-96-8075,
I-98-E047,
I-99-6078
Hearing No. 187-4-1508
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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleged
that she was discriminated against on the bases of race (Black), religion
(Hindu), sex (female), age (44), and reprisal (prior EEO activity) when:
(1) She was nonselected for the position of District Adjudication Officer
(DAO), Vacancy announcement number MIA 95-30; and,
She was selected for the position of Immigration Inspector (II), Vacancy
announcement number CR NOC95-091, at a GS 5 level rather than at a GS-7
level; and,
On February 26, 1998, she was directed to work overtime at the end of
her shift, but declined to do so because of a prior commitment to pick up
her child, and was threatened with a reprimand for insubordination; and,
On February 20, 1998, she became aware that another employee with
less experience and no prior complaint activity was selected for a 90
day assignment to Terrorist, Drug and Fraud (TDF) work which she had
requested but was denied; and,
On February 22, 1999, she was given a letter of reprimand from the
Deputy District Director, for insubordination on February 26, 1998.
The record reveals that during the relevant time, complainant was
employed as an Immigration Inspector, GS-1816-9, with the Airport
Inspection Unit, Miami District, in Miami, Florida. Believing she
was a victim of discrimination, complainant sought EEO counseling and
subsequently filed formal complaints on October 17, 1996 (I-96-8075),<1>
April 30, 1998 (I-98-E047), and April 8, 1999 (I-99-E078) respectively.
At the conclusion of the investigation of each complaint, 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 initially requested a hearing for each complaint, but
subsequently withdrew such requests, and instead requested that the
agency issue a final decision. The agency consolidated the complaints.
In its FAD, the agency concludes the following: As to allegation 1,
complainant failed to establish a prima facie case of age discrimination,
given that two of the selectees were over the age of 40. The FAD
additionally concludes that complainant failed to establish a prima facie
case of discrimination based on religion, and notes that the applicants'
religions were not noted on their applications. Additionally, complainant
failed to establish a prima facie case of reprisal, in that she did
not demonstrate a causal connection between her prior EEO activity and
the nonselection. Complainant did, however, establish a prima facie
case of race discrimination. The FAD then assumes, arguendo, that
complainant did establish a prima facie case of discrimination on the
alleged bases, and concludes that the agency articulated legitimate,
nondiscriminatory reasons for the nonselection. The FAD states that 94
individuals applied for the position in question, 78 met the minimum
qualifications (including complainant), and 8 were ultimately selected.
The FAD refers to the statements of the members of the ranking committee
about how they evaluated the candidates; the applicants were scored
based on their education, experience, training and the completeness
of their applications. Complainant scored 57 points, whereas all of
the selectees scored a minimum of 81 out of a possible 104 points.
Complainant received a score of 35 out of 40 for her experience,
but received a mere 2 out of 14 points for training and activities.
The FAD also notes that complainant only submitted one performance
appraisal (although two were required), and therefore received only
20 out of 40 points. The FAD further states, however, that even if
complainant did in fact submit two appraisals as she claims to have
done, the maximum score she could have received would have still been
lower than that of each selectee. One ranking official additionally
pointed out that they were not given the names of the applicants, and
that although the applicants' ages are indicated on their applications,
there is no notation of their race, religion, or prior EEO activity
(if any). The FAD concludes that complainant failed to prove that her
credentials are �plainly superior� to the selectees who are not in her
protected classes, nor has she otherwise established that the selecting
officials' reasons are pretextual.
As to allegation 2, the FAD concludes that complainant established no
prima facie case of reprisal. The FAD then proceeds to assume, arguendo,
that complainant did establish a prima facie case of discrimination
based on reprisal, age, race and religion, and concludes that the
agency articulated legitimate, nondiscriminatory reasons for the fact
that complainant was selected for the Immigration Inspector position at
the GS-5 level, rather than GS-7. The FAD concedes that two different
explanations were given for this action by two different officials.
One stated that, in order to be a GS-7, you either had to be downgraded
from a higher graded position or be an �outstanding scholar,� and that
complainant did not fit either of these criteria, as she was merely a
GS-4 when she applied for the position. The other official explained that
complainant was ineligible for the GS-7 because she had not completed the
FLETC training which was a prerequisite for GS-7. The FAD concludes,
however, that both explanations are erroneous. The FAD then offers a
third explanation which is that complainant indicated on her application
that she is not proficient in Spanish, and the vacancy announcement states
that in order to be a GS-7, Spanish language proficiency is required.
The FAD goes on to assert that despite the officials' errors, complainant
has proffered no evidence to suggest that their explanations were
intentionally false or pretext for unlawful discrimination or reprisal.
As to allegations 3 and 5,<2> the FAD concludes that complainant failed to
establish a prima facie case of race or sex discrimination, but that she
did establish a prima facie case of reprisal. The FAD proceeds to find
that, in any case, there were legitimate, nondiscriminatory reasons for
why a reprimand was recommended, and ultimately given, to complainant.
The reason given by management was that when complainant and several
other employees were instructed to work one hour of overtime in order to
process incoming passengers from a delayed flight, complainant refused to
do so, stating that she had to pick up her daughter. Several officials
testified that, due to the nature of the work, working overtime, when
needed, is a condition of employment. The Supervisory Immigration
Inspector (SII) who instructed complainant to work overtime on that
occasion, asserted his belief that even if complainant had worked overtime
she still would have had time to pick up her daughter. SII and the Former
Port Director (FPD) both concluded, based on a statement that complainant
made about not wanting to �fight traffic,� that the real reason that
complainant did not wish to work overtime was related to traffic,
and not her daughter. The Acting Port Director (APD) told complainant
that disobeying this order was insubordination for which there would be
consequences, but nevertheless, she left work at the end of her shift.
A recommendation for disciplinary was instituted, and the reprimand was
issued to complainant approximately one year later. The letter itself
states that the reason for the reprimand was complainant's failure to
comply with supervisory orders on February 26, 1998. The FAD addresses
complainant's argument that this reason is pretextual. Specifically,
complainant argues that she knows of two other Immigration Inspectors
(female, Hispanic) whose refusal to work mandatory overtime were
accepted by management, and not subjected to discipline. However, the
FAD refers to evidence of record which indicates that a reprimand was
also recommended for one of the two individuals named by complainant,
and that the record is devoid of any other evidence indicating that
Immigration Inspectors outside of complainant's protected class were
treated differently for refusing to work overtime. The FAD also
addresses complainant's argument that management violated the union
contract by failing to provide complainant with a three hour advance
notice of any overtime required to be worked, but points out that a
procedural violation does not equate to reprisal. The FAD concludes
that complainant has failed to otherwise establish pretext.
As to allegation 4, the FAD found that complainant failed to establish a
prima facie case of reprisal because she failed to demonstrate a causal
connection (i.e. temporal proximity) between her prior EEO activity
and the challenged action. However, the FAD assumes, arguendo, that
complainant made such a showing, and finds that, nevertheless, there is a
legitimate, nondiscriminatory reason for complainant's nonselection for
the TDF assignment. The FAD refers to an Immigration Supervisor's (IS)
statement that the ability to work irregular hours was a prerequisite
for the position, and complainant had expressed a desire to be assigned
to regular hours because of her child. The FAD found that complainant
failed to present evidence that this reason was pretextual.
On appeal, complainant restates arguments previously made, and emphasizes
that she is a single mother, trying to balance her personal life with
her job. The agency requests that we affirm its FAD.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he 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 consideration 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). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
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 Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming, arguendo, that complainant established her prima facie case
of discrimination on all of the alleged purviews, the Commission turns
to the agency to articulate legitimate, nondiscriminatory reasons for
its actions. As to issue 1, the agency's reason for complainant's
nonselection was that the selectees received higher numerical ratings
than she. As to issue 2, the agency's reason for selecting complainant
at the GS-5 level was that she was not eligible for the GS-7 level.
As to issues 3 and 5, the reprimand was recommended, and then issued
to complainant, because she disobeyed a direct order. As to issue 4,
complainant was not selected for the TDF detail because the ability to
work irregular hours was a prerequisite for the position, and complainant
had expressed a desire to be assigned to regular hours because of her
child. Upon review of the record, the Commission finds that the agency
has met its burden of articulating legitimate, nondiscriminatory reasons
for its actions. After a careful consideration of all of complainant's
contentions and evidence, we are not persuaded by a preponderance of
the evidence that the agency's reasons are not the real reasons, or that
the actions were, in fact, motivated by a discriminatory animus towards
complainant's race, sex, religion, age or prior EEO activity.<3>
We note that the agency analyzed the complaint under the theory of
disparate treatment rather than applying the law developed under a
theory of harassment. To the extent that complainant argues that she was
subjected to harassment, we apply the following standards which were set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in order
to prevail on a claim of harassment, complainant must prove that: (1)
she was subjected to harassment that was sufficiently severe or pervasive
to alter the terms or conditions of employment and create an abusive or
hostile environment; and (2) the harassment was based on her membership
in a protected class. See EEOC Notice No. 915.002 (March 8, 1994),
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 6; Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
The evidence in the record is insufficient to support a finding that
management's actions towards complainant were based on either her sex,
race, religion, age, or prior EEO activity. See EEOC Notice No. 915.002
(March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems,
Inc. at 3, 6.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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
March 14, 2002
__________________
Date
1 This complaint was initially dismissed
by the INS EEO Office on January 9, 1998, pursuant to 29 C.F.R. ��
1614.107(b) & (e), for failure to cooperate and for failure to file in a
timely manner. On January 26, 1998, complainant appealed the dismissal,
the EEOC reversed the dismissal and remanded the matter to the INS
EEO office. See EEOC Appeal No. 01982277 (June 15, 1999).
2 The FAD appears to address allegations 3 and 5 together because they
involve the same incident.
3 As to the nonselection for DAO position, we note that a complainant may
be able to establish pretext with a showing that his or her qualifications
were plainly superior to those of the selectee. Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar,
647 F.2d 1037, 1048 (10th Cir. 1981). We find that complainant has not
made such a showing in this case.