01985494_01985495
03-22-2001
Beverly Packard and Akira Komoriya, Complainants, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (Food and Drug Administration), Agency.
Beverly Packard and Akira Komoriya v. Department of Health and Human
Services (FDA)
01985494 & 01985495
March 22, 2001
.
Beverly Packard and Akira Komoriya,
Complainants,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(Food and Drug Administration),
Agency.
Appeal Nos. 01985494
01985495
Agency Nos. 919-93,
369-93,
623-94
Hearing Nos. 120-96-5509x,
120-95-6576x,
120-95-6577x
DECISION
INTRODUCTION
On July 8, 1998, Akira Komoriya and Beverly Packard (Complainants 1
and 2, respectively) timely filed an appeal with the Equal Employment
Opportunity Commission (the Commission) from the final agency decisions
(FADs) dated June 16, 1998, concerning their complaints of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
hereby accepts the appeals in accordance with 29 C.F.R. � 1614.405.
ISSUE
The issue on appeal is whether the Administrative Judge erred in finding
no discrimination.
BACKGROUND
The Commission Administrative Judge (AJ) ably summarized the facts and
background of this case in her decision, which consolidated the cases
of both complainants, and which we hereby incorporate by reference.
We will discuss those facts and background only to the extent that they
clarify the analysis in which we must engage as we review that decision.
Complainant 1
Complainant 1 was employed by the agency as a Senior Staff Fellow at
the agency's Food and Drug Administration (FDA) facility in Rockville,
Maryland. Complainant 1 filed formal complaints on February 26, 1993
and May 16, 1994, claiming discrimination on the bases of his race
(Asian), national origin (Japanese), sex (male) and in reprisal for
protected EEO activity.<2> He claimed that he had been subjected to
discrimination when: 1) on February 3, 1993, he was not selected for the
position of Chief of the Laboratory of Cell Biology; 2) on February 27,
1994, his Senior Staff Fellowship was terminated (by notice of letter
dated November 6, 1992); 3) on February 25, 1994, he was escorted out
of his office by a security guard; and 4) on February 28, 1994, he was
not allowed access to the building. Complainant 1 also claimed that he
was subjected to sexual harassment.<3>
Complainant 2
Complainant 2 was employed by the agency as a Senior Staff Fellow at the
agency's Food and Drug Administration facility in Rockville, Maryland.
Complainant 2 filed a formal complaint on September 2, 1993, claiming
discrimination on the bases of her sex (female) and in reprisal for
protected EEO activity. She claimed that she had been subjected to
discrimination when, on February 15, 1994, her Senior Staff Fellowship
was terminated (by notice of letter dated February 11, 1993).<4>
Complainants were employed in the Laboratory of Cell Biology, in the
Division of Cytokine Biology, which was part of the Office of Biologics
Research (later renamed the Office of Therapeutics Research and Review),
under the Center for Biological Evaluation and Research (CBER). For each
of the personnel actions at issue, the complainants' immediate supervisor,
the Acting Director of the Division of Cytokine Biology, MO-1, was the
decision-maker, however, the complainants' second level supervisor,
the CBER Director, MO-2, was responsible for approving the actions and
had the authority to disagree with MO-1 and overrule her decisions. Both
complainants are protein chemists and were married in June 1992.<5>
At the conclusion of each investigation, the complainants were provided
with copies of the investigative reports, and each requested a hearing
before an EEOC AJ. Following a consolidated hearing, which was held
January 27-31, 1997, the AJ issued a decision on April 13, 1998, finding
no discrimination.
In the case of each complainant, the AJ proceeded to analyze the cases
assuming that the requirements of a prima facie case had been met,
citing U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715 (1983). The AJ looked at the ultimate issue of whether the employer
committed intentional discrimination, noting that the complainant �at
all times bears the �ultimate burden of persuasion,'� citing St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 511 (1993).
The AJ first addressed complainant 1's claim of sexual harassment.
The incidents in question occurred in 1988, and complainant 1 alleged
that MO-2 (a female) behaved improperly towards him on several occasions
in her office (at this point in time, MO-2 held MO-1's position; she was
subsequently promoted in early 1992 to the position of CBER Director).
The AJ did not find complainant 1's allegations credible, and assumed
arguendo that even had one of the incidents occurred it did not constitute
conduct of a sexual nature under the circumstances of the incident and
the relationship between the two. She additionally found that there
was no evidence of a causal connection between the alleged incidents and
the decisions made four years later pertaining to both complainants, and
concluded that complainant 1 had not been subjected to sexual harassment
in violation of Title VII.
The AJ next addressed complainant 1's claim that his Senior Staff
Fellowship was terminated<6> for discriminatory reasons. After reviewing
the procedure through which Senior Staff Fellows would be converted,
and the criteria on which those personnel are evaluated for conversion,
the AJ then detailed the agency's articulated reasons for not converting
complainant 1. MO-1 decided not to recommend complainant 1 to the
Promotion and Tenure Review Committee for tenure, citing her evaluation
of his scientific and regulatory work. She found him to be performing
his regulatory responsibilities in an unsatisfactory manner, an evaluation
that was reinforced to her by other agency personnel with whom complainant
1 worked on regulatory matters. These personnel testified to their
evaluations of complainant 1's regulatory abilities at the hearing.
MO-1 also found complainant 1's scientific work to be wanting, however,
MO-2 did not share this assessment, although she concurred with MO-1's
recommendation not to convert complainant 1 based on his regulatory
skills. Although complainant 1 presented evidence and testimony that
his scientific skills would have warranted conversion to tenured status
at the National Institutes of Health (NIH), NIH scientists are not
responsible for regulatory activities and are not therefore evaluated
for tenure using this criteria as a factor.
The AJ concluded that there was no evidence to raise an inference
of reprisal discrimination in that complainant 1 had not engaged in
any protected activity prior to the date of his termination letter.
She also concluded that neither sex nor national origin were the bases
for MO-1's decision not to give complainant 1 tenure. She found that no
valid comparative evidence was presented showing that a similarly situated
person was treated differently, and that two scientists hired subsequent
to complainant 1's termination were not de facto replacements for him.
The AJ found the testimony of agency witnesses regarding complainant 1's
regulatory skills to be credible, and that this outweighed the testimony
of complainant 1's witnesses that he was a skilled scientist and would
likely have received tenure in another operating division of the agency,
such as NIH, given the regulatory mission of the FDA.
The AJ also noted that, regarding MO-1's evaluation of complainant 1 as a
scientist, the issue for her to decide was not �whether [MO-1's] judgment
in this regard was correct, only whether her explanation is a pretext
for discrimination,� and that it was proper to focus on the �employer's
motivation� and �not on its business judgment,� citing Loeb v. Textron,
Inc., 600 F.2d 1003, 1012, n. 6 (1st Cir. 1979). She concluded that
she could not say that MO-1's �judgments were so idiosyncratic or
questionable that they must be a mask for discrimination because of
the complainant's national origin or sex.� The AJ specifically noted
that she �carefully weighed the credible and troubling testimony that
[MO-1] was impatient and even rude with Asian staff members whom she
did not understand in verbal presentations,� but that this testimony
was �insufficient to persuade [the AJ] that [MO-1's] decision not to
give the complainant tenure was based on his national origin, given the
other relevant evidence, particularly regarding his regulatory work.�
The AJ specifically noted that neither complainant 1's accent nor his
English language skills were cited by the agency as a basis for the
decision not to grant him tenure, and concluded that they were not at
issue in the case. The AJ was also not persuaded by the testimony at the
hearing that MO-1 blocked the career advances of other Asian employees.
She also specifically noted that in the absence of direct evidence of
discrimination, she was precluded from utilizing a mixed motive analysis.
Regarding complainant 1's claims 3 and 4, that he was escorted out of the
office by a security guard and denied access to the office the following
week to retrieve items from his lab, the AJ found that complainant 1 did
not prove that his race, national origin, sex, or EEO activity was the
basis for MO-1 calling the security guard to escort him from the building.
She also noted that while MO-1's actions were a �rigid application of
exit procedures,� the preponderance of the evidence did not show those
actions to be discriminatory.
Finally, the AJ determined that complainant 1 was not discriminatorily
denied the position of Chief of the Lab of Cell Biology. The position
was advertised in July 1992, and in February 1993, MO-1, in consultation
with MO-2, decided not to fill the position. As of the date of the
hearing, the position still had not been filled. MO-1 testified
that she based her decision on changes in the structure and function
of the Division at that time, and that the position as advertised,
which was searching for a scientist with particular expertise, was no
longer an accurate reflection of the Division's needs. The AJ found
that complainant 1 did not establish this reason to be pretext for
discrimination or reprisal.
The AJ then addressed complainant 2's claims of discrimination. She found
that while complainant 2 had presented a prima facie case of reprisal,
the agency had produced legitimate, non-discriminatory reasons for
its decision to terminate her Senior Staff Fellowship, and found that
complainant 2 had failed to show that these reasons were pretext for
discrimination.
The agency's final decision for each complainant adopted the AJ's decision
in its entirety.
On appeal, complainants contend in their voluminous appeal brief that the
AJ erred in several ways in her decision. The complainants first took
issue with some of the specific factual findings of the AJ. The first
finding that they dispute is that the AJ found that MO-1 was the sole
decision-maker for all the personnel actions at issue, and they argue
that both MO-1 and MO-2 were equally responsible. The second is the AJ's
finding that complainant 1 was one of three individuals whose Senior
Staff Fellowships were terminated at about the same time. The other
two individuals were complainant 2 and another scientist in the same Lab
(CO-1). Complainant 1 was issued his termination notice in November 1992
while the other two individuals were issued their notices in February
1993, nearly three months later; all had effective termination dates in
February 1994. They argue that the action against CO-1 was taken to
cover up the agency's retaliatory motive regarding complainant 2, and
that CO-1 was subsequently rehired in a different part of the agency not
long after his effective termination date. The third finding they take
issue with was that the AJ noted that complainant 1 had been at the agency
for the maximum amount of time allowable under the rules of the Senior
Staff Fellowship program, and argued that other personnel had managed
to remain at the agency without going through the formal conversion
process proscribed for Senior Staff Fellows. The last factual finding
the complainants disagree with was that the AJ noted that �a minority of
fellows are converted.� They contend that the agency only definitively
identified one who was not converted, CO-1, and that since he was
subsequently rehired, the agency has not shown this statement to be true.
The complainants argued that the AJ made erroneous legal conclusions as
well, that she erroneously found no discrimination even though she found
that the complainants had provided credible evidence of pretext. They
argued that complainant 1 had proved that he had been sexually harassed
and that his rejection of MO-2's advances had colored her treatment of
him for the next four years, culminating in his termination. They also
argued that complainant 1 had proved that MO-1 was biased against Asians
and that complainant 1's accent, and MO-1's intolerance of it, played
a major part in the agency's decision not to convert complainant 1.
It was further argued that the agency did not prove the inadequacy of
complainant 1's scientific and regulatory skills, and that the agency
had not fully supported its legitimate, non-discriminatory reasons with
documentary proof, aside from the testimony in the investigation and
at the hearing. Additionally, complainant 1 advanced the case that he
proved pretext for his non-selection as Laboratory Chief, in that he
was the most qualified for the position and that he had functioned as
the Acting Lab Chief when he first started with the agency. Lastly,
complainant 1 argued that his removal from the agency facility and
subsequent denial of access had been proved to have been discriminatory
and that he had shown pretext, because MO-1 had made the decision to
call security and she was clearly biased against him.
Regarding complainant 2, it was argued on appeal that complainant 2 had
never been put on notice that her behavior was unacceptable, and that it
was not until after complainant 1's termination that she was not renewed,
despite these alleged ongoing problems. It was also argued that the agency
did not sufficiently prove that complainant 2 was difficult to work with,
while complainant 2 had proved that she was not so.
ANALYSIS AND FINDINGS
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).
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 or she 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).
Complainant 1
Claim 2: Termination of Senior Staff Fellowship
In order to establish a prima facie case of discrimination based on
race, national origin, and sex complainant 1 must show: (1) that he is
a member of a protected group; (2) that he was subjected to an adverse
employment action; and (3) that he was treated less favorably than other
similarly situated employees outside of his protected group. However,
it is not necessary for complainant to rely strictly on comparative
evidence in order to establish an inference of discriminatory motivation
necessary to support a prima facie case. O'Connor v. Consolidated Coin
Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on
O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002,
n. 4 (September 18, 1996). To establish a prima facie case of reprisal,
complainant 1 must show that: 1) he was engaged in protected activity; 2)
the alleged discriminating officials were aware of the protected activity;
3) the complainant was subsequently subjected to adverse treatment;
and 4) the adverse action followed the protected activity within
such a period of time that retaliatory motivation may be inferred.
Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976);
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d 493, 500
(6th Cir. 1987); Frye v. Department of Labor, EEOC Request No. 05940764
(December 15, 1994).
Upon review of the record, the Commission finds that complainant 1
failed to establish a prima facie case of sex, national origin, and
reprisal discrimination. In particular, we note that complainant 1
did not establish that an inference of a discriminatory motivation with
respect to his sex and reprisal. As to complainant's claim of national
origin discrimination, the Commission finds that the evidence complainant
1 provided related more to his race rather than to his specific national
origin. We also note that had complainant 1 establish his prima facie
case of national origin discrimination, there would be no change in the
relief awarded.
As to his claim of racial discrimination, the Commission finds that
complainant 1 has established a prima facie case. Complainant 1 has shown
that he is a member of a protected group based on his race and that his
Senior Staff Fellowship was terminated by MO-1. We further find that
complainant 1 has provided sufficient evidence to raise an inference of
a discriminatory animus with respect to MO-1's decision to terminate him.
In particular, the Commission notes that there was testimony by more than
one witness that MO-1 behaved rudely toward Asian members of her staff and
made comments particularly directed to individuals of that race, and that
this discrimination contributed to the challenged employment decision.
Winnie v. Federal Deposit Insurance Corp., EEOC Request No. 05890969
(June 28, 1989). Accordingly, we find that complainant has established
a prima facie case of race discrimination.
In response to complainant's prima facie case, the agency stated that
complainant 1 had problems with his scientific and regulatory work.
MO-1 noted that complainant 1 was frequently late completing his assigned
reviews of manufacturing issues and strayed into areas beyond his
expertise and would not accept a policy decision about a regulatory issue
if he had a dissenting view. Finally, MO-1 concluded that complainant 1's
scientific work did not warrant conversion to permanent status, especially
because his publications did not reflect substantial contributions as
an independent scientist. We find therefore that the agency articulated
a legitimate, nondiscriminatory reason for its action.
Now that the agency has satisfied its burden, complainant must prove by a
preponderance of the evidence that the legitimate reasons offered by the
agency were not its true reasons, but were a pretext for discrimination.
That is, complainant may attempt to establish that he was the victim of
intentional discrimination and the trier of fact �may still consider
the evidence establishing the [complainant's] prima facie case �and
inferences properly drawn therefrom... on the issue of whether the
[agency's] explanation is pretextual.'� Reeves v. Sanderson Plumbing
Product, Inc. 120 S.Ct. 2097 (2000) (quoting Burdine, 450 U.S. at 255,
n. 10). That is to say, a prima facie case of discrimination, combined
with sufficient evidence to find that the agency's reasoning is false,
shall allow the Commission to conclude that the agency's action was
discriminatory.
The AJ found that the comments made and behavior exhibited by MO-1 did not
amount to direct evidence that discrimination was a motivating factor in
the agency's decision. This is where the Commission differs from the AJ's
analysis. The AJ found that there was �credible and troubling testimony�
that MO-1 was �impatient and rude with Asian staff members whom she did
not understand in verbal presentations.� She also noted that this was not
direct evidence in order for her to be persuaded that the MO-1's actions
were based on a discriminatory animus towards complainant 1's race.
Upon review of the record, the Commission disagrees with the AJ
in this respect. Specifically, we find the testimony by witnesses
stating that MO-1 made derogatory comments directed toward Asians
by complainant 1 and others provide evidence that discrimination was
a factor. The Commission concludes that complainant 1 has presented
sufficient evidence to indicate that his race motivated MO-1's decision
to terminate his Senior Staff Fellowship. Lurking in the background
of the facts of this case, is the troubling testimony regarding MO-1's
treatment of other Asians within the Division. There was testimony
presented at the hearing that MO-1 was, according to the AJ, at the
very least �impatient and rude� in her dealings with Asian personnel.
Two witnesses testified that MO-1 would snicker, or laugh when they
were presenting information at meetings, that she would complain about
not being able to understand what they were saying, would cut them off,
would exhibit impatient behavior when she had to listen to their remarks,
and that she would fail to acknowledge Asians in the hall or say good
morning to them. Although MO-1 completely denied that she considered
complainant 1's accent when making her employment decisions, and she
completely denied the allegations of complainant 1 that she was biased
against Asians in general, the evidence indicates that MO-1 had a bias
which manifested itself through her hostility to Asian scientists and
personnel who spoke with any noticeable Asian accent.
Furthermore, upon review of the record, the Commission finds that
complainant 1 has made a showing that the agency's reasoning was pretext
for discrimination. MO-1 indicated that complainant 1 was frequently
late completing his assigned reviews of manufacturing issues. The AJ
noted in her recommended decision that there was no documentation of
complainant 1's alleged lateness and the only memorandum which cited
complainant 1's lateness related to his removal from a committee due to
his failure to complete reviews. Complainant 1 demonstrated that he was
never disciplined for any alleged lateness problems and that there is no
mention of any lateness problems on reviews or evaluations he received
from MO-1 or MO-2. Complainant 1 also noted that MO-2 provided, at times,
amnesty periods for submissions of all late reviews which allowed all
reviewers to move forward so they would not be held fully responsible for
reviews that were old. Further, MO-1 provided only one specific example
of complainant 1's alleged lateness which was a July 1993 memorandum
issued five months after the termination action. The fact that the
memorandum was issued after complainant 1 was terminated and is the only
documented example of his alleged lateness with his reviews makes the
document highly suspect. Accordingly, we find that complainant 1 has
provided sufficient evidence to cast doubt on MO-1's claims that he was
frequently late in completing regulatory assignments.
Another reason MO-1 provided for her decision to deny complainant 1 tenure
was that he had difficulty in defining and focusing on critical issues
and would not accept a policy decision about a regulatory issue if he
had a dissenting view. MO-1 also indicated that she had a difficult
time understanding complainant 1's points. The Commission notes that
again MO-1 and other agency officials who testified failed to provide
any documentary evidence or any specific incidents to support these
allegations. We are troubled by MO-1's claim that she did not understand
complainant 1's points based on the evidence of her derogatory comments
toward Asian staff members. We also note that there is no indication in
the record that the agency ever complained to complainant 1 about these
assertions. In particular, there are no comments about complainant
1's alleged shortcoming in his evaluations and he was never given a
memorandum documenting any such problems.
The only possible illustrations of complainant 1's difficulties in
defining and focusing on isses were two incidents which were discussed
by the AJ. They involved complainant's inspection work with EGF
receptors and the report by the on-site evaluation team (the Reviewers)
who reviewed complainant 1 as part of the tenure process. An Associate
Director testified to the fact that, on the inspection of EGF receptors,
complainant 1 was overambitious and unfocused with his work. The evidence
indicates that this inspection was complainant 1's first inspection and
the Associate Director testified that complainant 1's assessment could
be excused based on that fact. As to the report by the Reviewers, one
reviewer testified that he noted that complainant 1 needed to focus.
The reviewer also stated that the comment was based upon the lack of
resources available to complainant 1 and not to serve as criticism.
Furthermore, complainant 1 provided testimony from several accomplished
scientists who found that he did not have a communication problem or
that he had difficulty articulating issues. Accordingly, based on
our review of the record, the Commission finds that complainant 1 has
provided evidence which casts doubt on the credence of MO-1's claims as
to his lack of clarity and focus.
As to MO-1's claim that complainant 1's scientific work did not warrant
conversion, we find that complainant 1 has shown that she has failed
to support this assessment. In particular, the Commission notes
that complainant 1 was given an on-site evaluation by the Reviewers,
a team of established scientists in the relevant field, in June 1992.
The Reviewers highly recommended complainant 1 for tenure concluding
that he was �a well-trained scientist who established a strong research
program at the FDA, and that he is nicely fulfilling his obligations
to the agency with respect to his direct regulatory activities and
his supporting regulatory-related research.� MO-1 decided not to
recommend complainant 1 despite the strong recommendation from the
Reviewers.<7> Furthermore, complainant 1 provided other testimony from
several accomplished scientists with whom he had collaborated and who
praised complainant 1 for his scientific research and publications.
The AJ even noted that MO-1's attack on complainant 1's scientific work
was problematic especially since complainant 1 presented such strong
evidence of his exceptional credentials and MO-2 would have rated him
as a scientist higher than MO-1 did. Accordingly, the Commission finds
that complainant 1 has provided sufficient evidence to show that the
record does not support MO-1's conclusion that his scientific work was
inadequate.
Upon review of the record, the Commission finds that complainant 1
has established by preponderant evidence that the agency's action
was based on a discriminatory animus towards his race. Specifically,
the Commission notes that most of the agency's reasons were provided by
agency witnesses who failed to provide any independent evidence to support
their assertions. We also find that complainant provided evidence to
question the veracity of the agency's reasoning. Furthermore, based on
the disturbing evidence regarding MO-1's comments and behavior toward
Asians, the Commission concludes that discrimination is the most likely
alternative explanation. Thus, based upon complainant 1's establishment
of a prima facie case, combined with evidence casting doubt upon the
agency's reasons, we conclude that complainant 1 has proven his case of
discrimination based on race in the employment decisions at issue.
Claims 1, 3, and 4
In the remaining claims of his complaint, complainant 1 alleged that
he was subject to discrimination on the bases of race (Asian), national
origin (Japanese), sex (male) and in reprisal for protected EEO when: on
February 3, 1993, he was not selected for the position of Chief of the
Laboratory of Cell Biology; on February 25, 1994, he was escorted out
of his office by a security guard; and on February 28, 1994, he was not
allowed access to the building. Notwithstanding the issue of complainant
1's termination, after a careful review of the record, we discern no
basis to disturb the AJ's finding of discrimination as to the remaining
claims raised by complainant 1. The findings of fact are supported
by substantial evidence, and the AJ correctly applied the appropriate
regulations, policies, and laws to all claims save the claim related to
complainant 1's termination. Accordingly, the Commission affirms the AJ's
recommended decision finding no discrimination pertaining to claims (1),
(3), and (4).
Complainant 2
In order to establish a prima facie case of discrimination based on
sex complainant 2 must show: (1) that she is a member of a protected
group; (2) that she was subjected to an adverse employment action; and
(3) that she was treated less favorably than other similarly situated
employees outside of her protected group. Upon review of the record,
the Commission finds that complainant 2 has proven her prima facie case
of sex discrimination. In particular, the Commission notes that although
another male Senior Staff Fellow (SSF) was terminated at the same time
as complainant 2, he was granted an extension of his fellowship and
rehired by the agency.
We also find that complainant 2 has proven a prima facie case of reprisal.
To establish a prima facie case of reprisal, a complainant must show that:
1) she was engaged in protected activity; 2) the alleged discriminating
officials were aware of the protected activity; 3) the complainant
was subsequently subjected to adverse treatment; and 4) the adverse
action followed the protected activity within such a period of time that
retaliatory motivation may be inferred. Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.),
aff'd, 545 F.2d 222 (1st Cir. 1976); Manoharan v. Columbia University
College of Physicians and Surgeons, 842 F.2d 590, 593 (2d Cir. 1988);
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987); Frye v. Department
of Labor, EEOC Request No. 05940764 (December 15, 1994).
Complainant 2 claimed that she was retaliated against for her support of
complainant 1's EEO case against the agency, given her close relationship
with complainant 1. As the AJ noted, whether or not agency officials,
specifically MO-1 and MO-2, knew that the complainants were married in
1992, there was no question that it was known that the complainants were,
at the very least, close personal friends and professional colleagues
who often collaborated on projects together. Although each complainant
was notified that their Senior Staff Fellowship would not be renewed
at two different points in time, three months apart, complainant 2's
termination date was set for February 15, 1994, which was only twelve
days before that of complainant 1.
As its legitimate, non-discriminatory reason for its decision to
terminate complainant 2, the agency claimed that complainant 2 was
terminated because of her inability to work well or cooperatively with
other scientists in the Division. The agency did not cite the quality of
her scientific or regulatory work as reasons for her termination, and did
not put them at issue. The agency's position regarding complainant 2's
interpersonal skills was supported by testimony at the hearing from former
co-workers of complainant 2, who testified to the difficulties they had
working with her. There was also testimony from MO-1 that the agency in
1992 and 1993 was moving in a direction that required its scientists to
be able to work in teams on a more consistent basis and that complainant
2 demonstrated a lack of ability to do so. They testified that this was
the reason that complainant 2 was terminated. MO-2 concurred with MO-1's
decision to terminate complainant 2, and testified that she had spoken
to complainant 2 in August 1991 about the complaints about her behavior
that MO-2 had received from others who worked with complainant 2.
The burden shifts to complainant 2 to establish that the agency's
reasoning was pretext for discrimination. Complainant 2 presented
evidence from other scientists she had worked with who testified that
they never had these same sorts of difficulties interacting with her.
The AJ found the agency's witnesses to be credible and relied upon their
testimony to find that complainant 2 had a behavioral issue. However,
we do not find that the testimony that the AJ relied upon by itself
is sufficient. The agency failed to provide any documentary evidence
regarding complainant 2's alleged poor behavior. More importantly,
the Commission is concerned with the fact that the agency did not
clearly address the question as to why it tolerated complainant 2's
alleged poor behavior from 1988 through 1993, without either formally
warning her about this aspect of her performance or documenting it
for the record. MO-2 testified that she spoke to complainant 2 about
complaints that she had received from complainant 2's co-workers,
but it does not seem to have been an official discussion or warning.
Furthermore, the testimony regarding complainant 2's problems in the
workplace related to incidents which occurred in 1989, 1990, and 1991,and
is remote in time from the termination action at issue. The Commission
also notes that the agency did not discuss complainant 2's poor behavior
when it renewed her fellowship in September 1991 and September 1992.
The Commission is troubled by this in conjunction with the suspicious
timing of complainant 2's termination, coming so close on the heels of
the termination of complainant 1.
The agency also argued that the complainants were not the only individuals
who were terminated by the agency at that time. The record indicates
that another Senior Staff Fellow (SSF) had his fellowship terminated by
the agency and his termination notice was issued on February 5, 1993, by
MO-1 on the same day she issued complainant 2's notice. MO-1 testified at
the hearing that SSF was terminated because his scientific and regulatory
work were not suitable. The record also indicates that SSF was granted
an extension of his fellowship for one month by MO-1 to March 14, 1994.
Shortly after March 15, 1994, SSF was rehired by the agency at the same
salary as his position prior to his termination and was placed within
CBER by MO-2. Therefore, based on the weight of the evidence in the
record regarding complainant 2, we find that she has provided sufficient
evidence to find that the agency's reasons were false and that complainant
2 has proven her case of discrimination on the bases of sex and reprisal.
CONCLUSION
After a careful, complete, and thorough 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.
The Commission AFFIRMS the agency's adoption of AJ's finding of no
discrimination as to complainant 1's claims (1), (3), and (4). We,
however, find that the substantial evidence within the record indicates
that the agency discriminated against complainant 1 and complainant 2 when
they were terminated. Therefore, after a careful review of the record,
including complainant's arguments and contentions on appeal, the agency's
position, and arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final decision adopting the
AJ's finding of no discrimination as to the termination of complainant 1
and complainant 2. Accordingly, the Commission ORDERS the agency to take
corrective action in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following remedial actions:
1. The agency shall remove all references to the termination of
complainant 1 and complainant 2 from their official personnel records.
2. The agency shall offer complainant 1 a permanent, tenured civil
service position within the Division of Cytokine Biology in the Center
for Biologics, Evaluation and Research, or substantially equal position,
retroactive to February 27, 1994.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant 1, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. Complainant 1 shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant 1 for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant 1 may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
3. The agency shall award complainant 2 back pay with interest and
other benefits due complainant, for the period from February 15, 1994
to September 1994.
The agency shall determine whether complainant 2's Senior Staff Fellowship
would have been renewed or converted to a full-time, permanent position
in September 1994. We note that MO-1 and MO-2 shall play no role in
making this determination. If so, complainant 2 should be reinstated
in a permanent position within the Division of Cytokine Biology in the
Center for Biologics, Evaluation and Research, and given back pay with
interest and other benefits due complainant 2. If complainant 2's Senior
Staff Fellowship would not have been converted, then the agency shall
offer complainant 2 a Senior Staff Fellowship within the Division of
Cytokine Biology in the Center for Biologics, Evaluation and Research,
or a substantially equal position.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant 2, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. Complainant 2 shall cooperate in
the agency's efforts to compute the amount of back pay and benefits due,
and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant 2 for
the undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. Complainant 2 may
petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
4. The agency is directed to conduct training for the Management
Officials who were found to have discriminated against complainant 1 and
complainant 2. The agency shall address these employees' responsibilities
with respect to eliminating discrimination in the workplace.
5. The issues of compensatory damages and attorney's fees and costs
are REMANDED to the Hearings Unit of the Washington Field Office.
Thereafter, the Administrative Judge shall issue a decision on these
issues in accordance with 29 C.F.R. � 1614.109, and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110 within forty
(40) days of receipt of the Administrative Judge's decision. The agency
shall submit copies of the Administrative Judge's decision and the final
agency action to the Compliance Officer at the address set forth below.
6. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due complainant;
calculation of other pecuniary damages; and evidence that the corrective
action has been implemented.
INTERIM RELIEF (F0900)
When the agency requests reconsideration and the case involves a
finding of discrimination regarding a removal, separation, or suspension
continuing beyond the date of the request for reconsideration, and when
the decision orders retroactive restoration, the agency shall comply with
the decision to the extent of the temporary or conditional restoration
of the complainant to duty status in the position specified by the
Commission, pending the outcome of the agency request for reconsideration.
See 29 C.F.R. � 1614.502(b).
The agency shall notify the Commission and the complainant in writing at
the same time it requests reconsideration that the relief it provides
is temporary or conditional and, if applicable, that it will delay
the payment of any amounts owed but will pay interest from the date
of the original appellate decision until payment is made. Failure of
the agency to provide notification will result in the dismissal of the
agency's request. See 29 C.F.R. � 1614.502(b)(3).
POSTING ORDER (G0900)
The agency is ordered to post at its Center for Biologics Evaluation
and Research at the Food and Drug Administration copies of the attached
notice. Copies of the notice, after being signed by the agency's duly
authorized representative, shall be posted by the agency within thirty
(30) calendar days of the date this decision becomes final, and shall
remain posted for sixty (60) consecutive days, in conspicuous places,
including all places where notices to employees are customarily posted.
The agency shall take reasonable steps to ensure that said notices are not
altered, defaced, or covered by any other material. The original signed
notice is to be submitted to the Compliance Officer at the address cited
in the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 22, 2001
__________________
Date
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated , which found that
violations of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Food and Drug Administration supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Food and Drug Administration has been ordered to remedy two employees
affected by the Commission's finding that they were discriminated
against one because of race and the other because of retaliation and
sex when the Food and Drug Administration terminated them. As a remedy
for the discrimination, the employees were awarded the positions they
would have been in absent discrimination, back pay, and removal of all
references to the termination actions from their personnel records.
In addition, the facility was ordered to submit a compliance report to
the Commission verifying the completion of all ordered corrective action.
The Food and Drug Administration will ensure that officials responsible
for personnel decisions and terms and conditions of employment will abide
by the requirements of all Federal equal employment opportunity laws.
The Food and Drug Administration will not in any manner restrain,
interfere, coerce, or retaliate against any individual who exercises his
or her right to oppose practices made unlawful by, or who participates
in proceedings pursuant to, Federal equal employment opportunity law.
________________________
Date Posted: ________________
Posting Expires: _____________
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Complainant 1 also raised age as a basis of discrimination in his
formal complaint, but withdrew this basis at the administrative hearing.
3 Complainant 1 also originally claimed that he had been discriminated
against when in February 1993, he was not selected for the position of
Director of the Division of Cytokine Biology, but he withdrew this issue
at the administrative hearing as well.
4 Complainant 2 also alleged that she was discriminated against on
the bases of sex and in reprisal when she was not converted from a
Senior Staff Fellow to a permanent position. The record indicates
that complainant 2's term as a fellow has not been completed and she
had not been evaluated for consideration for conversion to a permanent
civil service position. Upon review, we note that the effect of her
termination was that she was not eligible for consideration for tenure.
Accordingly, the Commission shall address both claims as her claim of
discrimination based on the termination of her fellowship.
5 The record indicates that the complainants did not announce their
wedding and it is not clear whether CBER officials knew of their marriage.
However, it is clear from the record that it was common knowledge that
the complainants were close friends and MO-1 was aware of their close
relationship.
6 The parties variously term the action in question, stating
interchangeably that the complainants were terminated, that their Senior
Staff Fellowships were not renewed, or that they were not converted
to permanent employee status with the agency. The effect is the same,
namely that the complainants' employment with the agency was ending.
7 The Commission also notes that the AJ determined that MO-1 was
the ultimate decision maker and MO-2 merely concurred with MO-1's
recommendation.