01986573
12-21-2000
Carlos Moran, Complainant, v. Janet Reno, Attorney General, Department of Justice (Immigration and Naturalization Service), Agency.
Carlos Moran v. Department of Justice
01986573
December 21, 2000
.
Carlos Moran,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice
(Immigration and Naturalization Service),
Agency.
Appeal No. 01986573
Agency Nos. I-94-6410,
I-94-6443, I-94-6527
DECISION
INTRODUCTION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint 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 appeal is accepted pursuant to 29
C.F.R. � 1614.405. For the reasons that follow, we AFFIRM the final
agency decision.
ISSUE PRESENTED
The issue presented herein is whether complainant has established, by
preponderant evidence, that he was discriminated against on the bases
of race (Hispanic), national origin (Mexican), sex (male), and reprisal;
and subjected to sexual harassment.
BACKGROUND
Complainant, formerly employed as a Special Agent (GS-1811-12) at
the agency's Wichita, Kansas facility, filed three formal complaints;
the first one on March 14, 1994; the second one on July 9, 1994; and
the third one on October 9, 1994. In the first complaint, complainant
alleged that he was discriminated against based on national origin and
reprisal when he was required to submit, in person, documents supporting
his use of sick leave and placed under administrative arrest during an
agency interrogation. In the second complaint, complainant alleged that
he was discriminated against on the bases of race, national origin, sex,
and reprisal when he was subjected to unwelcome sexual remarks by his
supervisor. Finally, in the third complaint, he alleged discrimination
based on race, national origin, sex, and reprisal when management
officials provided the Department of Human Resources with derogatory
information in an attempt to deprive him of unemployment compensation
to which he was entitled. The agency accepted all three complaints for
investigation and, after consolidating them pursuant to our regulations,
issued a single decision finding no discrimination. It is from that
decision that complainant appeals.
The record indicates that, in 1993, the agency initiated an investigation
against complainant regarding whether he improperly used a government
vehicle and credit card while engaged in an inappropriate relationship
with a woman who worked for the Catholic Social Services (CSS), a
Qualified Designated Entity (QDE) that dealt with the agency. The
agency charged that the alleged relationship with the CSS employee was
inappropriate because agents of the agency were prohibited from getting
involved with employees of QDEs. Specifically, the agency contended
that because the employee worked for the CSS and complainant worked as
a Special Agent assigned to investigate the CSS, the relationship was
improper. The investigation also concerned whether complainant broke
any government rules by obtaining life insurance for the child that he
fathered with the CSS employee.
Regarding his first formal complaint, complainant stated that, on
January 10, 1994, his supervisor informed him that the Supervisory
Special Agent from the Kansas City District Office (SSA-KC) had some
papers for him to sign. After complainant entered his supervisor's
office, the SSA-KC presented him with two letters dated January 7, 1994.
One of the letters was from the SSA-KC; the other one was from the
Assistant District Director for Investigations. Both letters directed
him to travel to Kansas City on January 23, 1994, for interrogation.
The SSA-KC asked complainant to sign the letters. When complainant
indicated that he did not want to sign the letters until after he
consulted an attorney or union representative, the SSA-KC indicated that
he did not have a right to either and ordered him to sign the letters.
Complainant stated that he complied with the order under duress.
After the meeting with the SSA-KC, complainant contacted his supervisor
and asked him to contact the District Director to ascertain whether he
could drive his personal vehicle to Kansas City. His personal vehicle
provided him the opportunity to visit his attorney. The supervisor
later informed complainant that he was told by the Deputy Director that
the request to drive his personal vehicle had been denied and, as such,
he would be required to drive a government vehicle.
The next day, January 11, 1994, complainant reported to work for a couple
of hours and then went home on sick leave. He stated that his doctor
had placed him on sick leave for ten days. Later that day, complainant's
supervisor called him at home and indicated that he (supervisor) had been
informed by the District Director that complainant could no longer carry
firearms. After the call, complainant and his wife met his supervisor
at the agency's local field office where he surrendered his weapon.
At the office, complainant's supervisor informed complainant that the
District Director had received information from the CSS employee which
indicated that complainant was suicidal.
Complainant stated that on January 12, 1994, his supervisor came
to his house and gave him a memorandum from the District Director.
The memorandum placed him on administrative leave, reminded him that
his firearm privileges were suspended, and required him to see a police
psychologist.
At the end of complainant's ten day sick leave period, his doctor placed
him on sick leave for an additional ten days. Therefore, he was not
required to report back to work until January 30, 1994. Complainant
called his supervisor and informed him of the additional sick leave.
According to complainant, he was required to go into the office at 6:45
a.m. in order to fax a sick leave request to the District Director.
The request was approved approximately 45 minutes later. On January 25,
1994, complainant was again required to go into the office although he
was still on sick leave. According to him, he was required to go into
the office to pick up a letter from the SSA-KC informing him that the
interrogation scheduled for January 25, had been rescheduled to February
1 and 2, 1994.
On January 31, 1994, one day after the second sick leave period expired,
complainant reported to the agency's Kansas City office as directed
by the SSA-KC. Specifically, he reported to the Supervisory Criminal
Investigator (SCI). The SCI asked the complainant if he had any weapons
and where he would be staying. Afterwards, complainant was allowed
to leave. The next day, complainant reported to the Kansas City office
again. This time, he was instructed not to leave the building until
4:00 p.m. Complainant believes that the agency's actions constituted an
administrative arrest because his movements were restricted by lawful
authority. Complainant also believes that requiring him to report to
Kansas City a day after being medically cleared to return to work is
evidence of the District Director's racial and reprisal discrimination.
During the second day of the interrogation, which occurred on February 2,
complainant began suffering chest pains. He immediately called his doctor
and scheduled an appointment for the next day. That day, the Immigration
and Naturalization Service (INS) flew him back to Wichita before the
interrogation was complete. When he saw his doctor on February 3,
he was placed on two weeks sick leave. He did not have to return to
work until February 18, 1994. On February 15, complainant received
a letter from the Deputy Director requiring him to get a statement
from his doctor regarding when he could complete the interrogation.
Because the statement was due by February 17, complainant was required
to deliver the statement physically. Complainant believes that the fact
that he had to report to work again while on sick leave is an example of
the discrimination to which he was subjected. Particularly in light of
the fact that, to his knowledge, no White Special Agents were ordered to
produce medical documentation while on sick leave or fax in sick leave
requests for personal approval.
Regarding his second complaint, complainant alleged that he was
discriminated against when he was subjected to unwelcome sexual remarks.
Specifically, complainant stated that during the February 1 interrogation,
the SSA-KC accused him of having sexual relations with a CSS employee.
During the interrogation, the SSA-KC also read aloud, in the presence of
a female employee (complainant's union representative), a love letter
written by complainant that he had procured from the CSS employee.
Complainant stated that although there was nothing sexually explicit
in the letter, the SSA-KC made it sound as if there was. Complainant
believes that these acts were unwelcome, insensitive, and totally
unprofessional; and therefore constitute sexual harassment. He also
believes the investigation regarding his relationship with the CSS
employee was done in retaliation for prior EEO activity. To support
this belief, he stated that the District Director had known since 1989
about his relationship with the CSS employee because he had introduced
them and when a child was born out of the relationship, the Director
refused to add the child to complainant's insurance benefits.
On March 9, 1994, complainant informed the SSA-KC, District Director,
and Deputy Director of the unwelcome sexual remarks and innuendos.
Complainant stated that the SSA-KC showed the letter to his union
representative calling it �hilarious.� Complainant also stated that
the District Director and the Deputy Director failed to take immediate
corrective action; and, in fact, encouraged further acts of sexual
harassment. He stated that, on April 7, 1994, the SSA-KC flooded his
home with pornographic materials. He did not elaborate on what those
materials contained.
In the third complaint, the one filed on October 9, 1994, complainant
alleged that he was discriminated against when agency officials provided
derogatory information to the Kansas Department of Human Resources in
an attempt to deprive him of unemployment compensation. The evidence
of record indicates that complainant was discharged from his position
as a Special Agent on May 4, 1994.<2>
On June 7, 1994, complainant filed an application with the Kansas
Department of Human Resources, Division of Employment Security (ESD)
for unemployment benefits. Ten days later, an agency Labor Relations
Specialist (LRS) submitted a letter to the KDHR indicating that
complainant had been removed for misconduct. On July 2, 1994, the ESD
ruled in complainant's favor and awarded him unemployment benefits.
Four days later, the LRS appealed the ESD's findings. A hearing was
held on August 16, 1994 to determine if complainant was eligible for
unemployment compensation. On September 6, 1994, the ESD reversed its
earlier decision. As a result, complainant's application for benefits
was denied. Complainant stated that the agency provided derogatory
information to the ESD. He also stated that the information provided
was confidential and not public information.
ANALYSIS AND FINDINGS
Disparate Treatment (First and Third Complaints)
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must 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. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
To establish a prima facie case of reprisal discrimination, complainant
must show that (1) he engaged in prior protected activity; (2) the
acting agency official was aware of the protected activity; (3) he was
subsequently disadvantaged by an adverse action; and, (4) there is a
causal link. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted). . The causal link may be shown
by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Id. Generally, the Commission has held that a link
may be established if events occurred within one year of each other.
Patton v. Department of the Navy, EEOC Request No. 05950124 (June 27,
1996).
Although the initial inquiry of discrimination in a discrimination
case usually focuses on whether the complainant has established a
prima facie case, following this order of analysis is unnecessary when
the agency has articulated a legitimate, nondiscriminatory reason for
its actions. See Washington v. Department of the Navy, EEOC Petition
No. 03900056 (May 31, 1990). In such cases, the inquiry shifts from
whether the complainant has established a prima facie case to whether
he has demonstrated by preponderance of the evidence that the agency's
reasons for its actions merely were a pretext for discrimination. Id.;
see also United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 714-717 (1983). In this case, we find that the agency
has articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the first complaint, the agency stated that unlawful employment
discrimination played no role in requiring complainant to provide
doctors' statements regarding his sick leave requests. The agency
further stated that over the past two years, 14 employees were required
to submit such statements in connection with their sick leave requests.
The agency noted that of those 14 employees, ten were White, one was
Black, and three were Hispanic (including complainant). The agency
also stated that complainant was not placed under administrative arrest
during the February 1, 1994 interrogation. The agency explained that,
although complainant's presence was required, he was not restrained from
leaving the area. The agency further explained that government employees
are required to cooperate in an investigation; and that if complainant
had chosen not to cooperate, he would have been subjected to penalties
applicable under the Schedule of Disciplinary Actions.
Regarding the third complaint, the agency denies that it was motivated by
unlawful discrimination when it provided the ESD with information that
prevented complainant from receiving unemployment benefits. The agency
stated that it routinely appeals determinations awarding unemployment
benefits to former employees who were discharged for misconduct<3> because
although unemployment benefits is a state program, the state bills the
employer for the cost of benefits if they are awarded. The District
Director stated that he testified at the unemployment benefits hearing
held on August 16, 1994. He stated that complainant asserted on his
application that he did not know why he was discharged when in fact
he did. He also stated that his appearance at the hearing was necessary
because he was the deciding official and the person who ordered the
pre-action inquiry of misconduct against complainant. Finally, the
District Director stated that he appeared at the unemployment benefits
hearing of six other employees; two were Black, two where White, and
the race of the other two were unknown.
Because the agency has proffered legitimate, nondiscriminatory reasons
for the alleged discriminatory events, complainant now bears the
burden of establishing that the agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). Complainant can do this
by showing that the agency was motivated by a discriminatory reason.
Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
In this case, complainant has failed to meet that burden. In attempting
to prove pretext, complainant presented no evidence tending to prove that,
more likely than not, the agency's articulated reasons are a pretext
for unlawful discrimination. For that reason, we find that he failed
to prove that the agency's actions constitute discriminatory animus.
Sexual Harassment (Second Complaint)
Harassment of an employee that would not occur but for the employee's
race, color, sex, national origin, age, disability, or religion is
unlawful, if it is sufficiently patterned or pervasive. McKinney v. Dole,
765 F.2d 1129, 1138-1139 (D.C. Cir. 1985). A single incident or group
of isolated incidents will not be regarded as discriminatory harassment
unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355,
1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all of
the circumstances, including the frequency of the discriminatory conduct,
its severity, whether it is physically threatening or humiliating,
or a mere offensive utterance, and whether it unreasonably interferes
with an employee's work performance. Harris v. Forklift Systems, Inc.,
510 U.S. 17, 23 (1993).
In order to establish a prima facie case of such harassment, the
complainant must prove, by a preponderance of the evidence, the existence
of five elements: (1) that he is a member of a statutorily protected
group; (2) that he was subjected to unwelcome sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature;
(3) that the harassment of which he complained is based on sex;(4) that
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with his work environment
and/or creating an intimidating, hostile, or offensive work environment;
and (5) that there is a basis for imputing liability to the employer.
Henson v. City of Dundee, 682 F.2d 987, 903-05 (11th Cir. 1982).
The harasser's conduct should be evaluated from the objective viewpoint
of a reasonable person in the victim's situation. Enforcement Guidance on
Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (March 8, 1994).
In this case, complainant has failed to establish a prima facie case of
sexual harassment. Complainant alleged that he was sexually harassed
when an agency official accused him of having an improper relationship
with a CSS employee and read a love letter, which the complainant
admits was not sexual in nature, aloud in front of a female co-worker.
Those actions, however, do not amount to conduct of a sexual nature.
Complainant also alleged that he was sexually harassed when the agency
sent pornographic materials to his home. But we note that he failed to
elaborate as to what those materials were and how they were pornographic.
Information in the file indicates that complainant was sent the materials
used by the SSA-KC to determine whether complainant had engaged in an
inappropriate relationship with a CSS employee. After examining those
materials, the Commission concludes that they were not pornographic
in nature. For those reasons, we find that complainant cannot prevail
on his sexual harassment claim.
CONCLUSION
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 final agency
decision.
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 (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
December 21, 2000
__________________
Date
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.
2Complainant's termination is not an issue in this case. Therefore,
it will not be addressed in this decision.
3Information in the evidentiary file indicates that complainant was
discharged for falsifying a travel voucher; falsifying a time and
attendance report; falsifying a material fact concerning a U.S. government
investigation; unauthorized use of a government vehicle; failure to
timely honor just debts; non-compliance with service policy; and failure
to fulfill the duties of his position.