0120054530
11-13-2006
Janet Neely, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Bureau of Customs and Border Protection) Agency.
Janet Neely,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Bureau of Customs and Border Protection)
Agency.
Appeal No. 0120054530
Hearing No. 360-2005-00038X
Agency Nos. 03-2252T; 05-0656
DECISION
On June 14, 2005, complainant filed an appeal from the agency's final
order dated May 17, 2005 concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. The appeal is deemed timely and is accepted pursuant to
29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission
AFFIRMS the agency's final order.
Complainant filed a formal EEO complaint on March 8, 2003, alleging
that she was discriminated against on the bases of race (Caucasian), sex
(female), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when, on or about October of 2002, she
was relieved of her regular supervisory duties and given administrative
duties in the agency's South Texas Customs Management Center in Laredo,
Texas ("facility")(Allegation 1; TD Case Number 03-2252). Subsequently, on
September 23, 2003, complainant amended her initial complaint to add the
following allegations: (1) on or about August of 2003, the agency relieved
complainant of her government-issued weapon, badge and credentials,
and denied her access to mainframe systems; and (2) on or about August
of 2003, she did not receive a monetary award. These allegations were
investigated as amended issues to complainant's initial complaint (TD
Case Number 03-2252T). Finally, after the investigations were completed
but while the case was pending before the EEOC Administrative Judge
(AJ)2, complainant alleged that on or about April 16, 2004, complainant
received a notice of proposed removal, alleging wrongdoing and negligence
on her part, stemming from her reporting of joint agency task force drug
seizures in 1998 and 1999 (Allegation 4).
The record indicates that complainant was employed by the agency as a
GS-1890-12 Supervisory Customs Inspector at the facility. Complainant
alleged that the facility's Interim Port Director (IPD) relieved her of
her supervisory duties and placed her in an administrative position at
the facility effective October 7, 2002 as he had concerns over an audit
performed on the work of an employee who acted as the purchase cardholder
for the facility. Subsequently, while complainant was investigated
by the agency's Office of Internal Affairs (IA), the agency relieved
complainant of her government-issued weapon, badge and credentials, and
denied her access to mainframe systems. The record indicates that the
IPD became aware of purchases neither he nor his delegate approved, and
later discovered several other discrepancies regarding other purchases.
The IPD stated that he assigned two (2) Customs officials to conduct an
audit of the purchase card program, and during the audit, complainant
was placed on administrative duties at the facility as she supervised
the budget process.
Believing she was the victim of discrimination, complainant sought
EEO counseling and filed the aforementioned formal complaint. At the
conclusion of the investigation, complainant was provided with a copy
of the report of investigation and notice of her right to request a
hearing before an EEOC AJ. Complainant timely requested a hearing and
the AJ held a telephonic hearing on January 27, 2005 and February 24,
2005, and issued a decision on April 13, 2005. The agency subsequently
issued a final order adopting the AJ's finding that complainant failed
to prove that she was subjected to discrimination as alleged.
In his decision, the AJ found that the agency articulated legitimate,
nondiscriminatory reasons for its actions. As such, the AJ considered
whether complainant proffered evidence which demonstrated that the
agency's articulated reasons were more likely than not a pretext
for discrimination. Initially, the AJ noted that the function of
the agency's IA was to investigate allegations brought against agency
personnel involving fraud, waste and abuse, bribery and other allegations
of wrongdoing which are unique to law enforcement. The AJ noted that
part of the IA investigation process involves placing the officer under
investigation on administrative duties. Depending on the allegations,
actions may involve relieving the officer of their badge, credentials
and weapon, pending the outcome of the investigation. As such, the
AJ noted that he did not have any objection to IA investigations
"in theory." The AJ noted that the agency refers to its IA unit
allegations of poor performance by employees; and it appeared to him that
matters of performance would be handled in other agencies by managers
and supervisors. The AJ noted that administrative duties were like
"purgatory" for employees who were referred to IA, and he had sympathy
for employees who are investigated by IA. While the AJ found that the
agency's IA function needed fixing, he noted that the facts indicated
due to an audit of a purchasing order by the purchase cardholder for the
Laredo Command Center, which complainant supervised, she was relieved
of her supervisory duties and placed in an administrative position in
the Command Center pending an investigation by IA. Subsequently, an IA
investigation revealed no wrongdoing by complainant on that allegation.
However, the AJ found that given that a preliminary audit showed possible
fraud, waste and abuse on the part of complainant, the agency acted
"prudently and appropriately" when it temporarily assigned complainant
to temporary non-supervisory duties in the facility. The AJ then found
that in August of 2003, on the basis of another IA investigation into
allegations against complainant (regarding false data on task force drug
seizures), the agency relieved complainant of her badge and weapon and
denied her access to the agency's mainframe databases. The AJ noted
that on its face, this allegation involved fraud, waste and abuse.
AJ's Decision at 12. The AJ then found that he was persuaded that the
agency's IPD exercised his legitimate discretionary authority in placing
restrictions on complainant following the second IA investigation
which involved allegations of fraud, waste and abuse. The AJ noted
that complainant did not proffer evidence that some of complainant's
co-workers were placed on less restrictive administrative duties under
similar circumstances. In so finding, the AJ noted that the agency's
IPD was more consistent and uniform about ordering individuals placed
on administrative duties once it is determined that there is a basis
for allegations of wrongdoing than was his predecessor. Further, the
AJ noted that many of the comparison situations alleged by complainant
arose under the IPD's predecessor. AJ's Decison at 13. As such, the
AJ found that the evidence did not support a finding that complainant
was the victim of discrimination or retaliation when she was placed on
administrative duties.
Addressing complainant's allegation regarding her failure to receive an
award, the AJ noted that the IPD stated that complainant was nominated
to share in an award for supervisors, but later decided not to recommend
complainant as she was not performing supervisory duties.3 AJ's Decision
at 14. The AJ found that the preponderant evidence established that
complainant had not been recommended for the award at issue, and she
failed to establish that she had been discriminated or retaliated against.
Finally, the AJ addressed complainant's proposed removal and stated
that he heard testimony from the Employee Relations Specialist from the
agency's Headquarters, concerning the process used by the Disciplinary
Review Board in determining whether to take action on the basis of an IA
investigation of wrongdoing. The AJ found that decisions on discipline
are made at the Headquarters level with little input from management,
but also found insufficient evidence that the agency discriminated or
retaliated against complainant in proposing her removal. The agency
then issued a final order, which fully implemented the AJ's decision.
On appeal, complainant alleged that the AJ's finding that she had not
been retaliated against was an error, when the facts established that
the agency served a proposed removal of complainant shortly after she
requested a hearing before the Commission. The agency responded to
complainant's appeal, stating that the agency articulated legitimate,
nondiscriminatory reasons for the actions taken against complainant.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Telephone Hearing
Initially, we note that the hearing in this case was conducted by
telephone without the objection of the parties. On May 17, 2006, the
Commission announced its policy regarding the conduct of hearings and
the taking of telephonic testimony in future cases by setting forth
standards for its Administrative Judges regarding the taking of testimony
by telephone. Louthen v. USPS, EEOC Appeal No. 01A44521 (May 17, 2006).
The Commission reasoned that, given the special weight accorded an
AJ's credibility findings based on his/her in-person observation of
witnesses, except for limited circumstances, the conduct of an entire
hearing by telephone is not appropriate and should not occur. Id. The
Commission held, however, that in exigent circumstances, i.e., when
in-person testimony is simply not practical, such as a witness deployed
on military reserve duty away from his/her duty station, testimony by
telephone may be appropriate. Id. Also, where both parties voluntarily
agree and request a telephonic hearing by the AJ, the AJ may consent but
must obtain documented proof of their voluntary request. Id.; see also
Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17,
2006); Rand v. Department of the Treasury, EEOC Appeal No. 01A52116
(May 17, 2006).
As to cases that pre-date Louthen, such as the matter before us, the
Commission will assess the propriety of a telephone hearing considering
the totality of the circumstances. In particular, the Commission will
consider factors such as whether there were exigent circumstances,
whether a party objected to the taking of telephonic testimony4, whether
the credibility of any witnesses testifying telephonically was at issue,
and the importance of the testimony given by telephone. Thus, where
telephonic testimony was improperly taken, the Commission will scrutinize
the evidence of record to determine whether the error was harmless or not.
Sotomayor v. Department of the Army, supra. In this matter, while it is
unclear whether exigent circumstances existed, there was no objection
from either party on the record, nor were there issues of witness
credibility that might have been impacted by the taking of testimony by
telephone. Under these circumstances, even if it is assumed that the AJ
abused his discretion in this case by taking testimony telephonically,
the Commission finds that the AJ's action constituted harmless error.
Disparate Treatment
As described by the AJ, claims such as complainant's are examined
under the tripartite analysis first enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). 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 Corp. v Green, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Next, if
complainant is successful, the burden of production reverts to the
agency to offer its rebuttal to the inference of discrimination raised
by complainant by articulating legitimate, nondiscriminatory reasons
for its action(s). Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Finally, once the agency has articulated its
reasons, the burden returns to complainant, who bears the ultimate burden
to persuade the fact finder by a preponderance of the evidence that the
reasons offered by the agency were not the true reasons for its actions
but rather were a pretext for discrimination. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993).
For purposes of analysis of complainant's claim, we assume, arguendo,
that complainant established a prima facie case of discrimination and
retaliation regarding her allegations. Next, the agency articulated
its reasons for its actions. Specifically, the agency, through the IPD
at the facility, explained that complainant was relieved of her regular
supervisory duties and given administrative duties while the audit of
the facility's purchase card program was completed after allegations
of unauthorized purchases in a program supervised by complainant
were discovered. The IPD stated that complainant's failure to accept
supervisory responsibility for the areas in which she had immediate
oversight and her failure to realize the seriousness of the matter
merited a change of duties for complainant. Investigative File (IF)
at Exhibit 5. The IPD further stated that after the results of the
audit were sufficiently severe to refer the matter to the agency's
IA, complainant was relieved of her weapon, badge and credentials and
denied access to the agency's mainframe system. The IPD stated that
these actions were taken while the IA investigation was taking place.
IF at Exhibits 3, 4.
Regarding the cash award, while there was varying testimony whether
complainant was nominated for the award, five (5) of the supervisors
on the award committee stated the committee determined that she should
not receive an award as she had not served as a supervisor during
the entire rating period. IF at Exhibit 5. The IPD stated that he
did not consider complainant for an award as the award committee did
not recommend her, and he also did not consider another employee who
was performing administrative duties for an award. IF at Exhibit 4.
Addressing the proposed removal, we note that an Employee Relations
Specialist from the agency's Headquarters stated at the hearing that
the proposed removal was undertaken by the agency's Disciplinary Review
Board in response to the IA's investigations of complainant alleging
wrongdoing from her reporting of joint agency task force drug seizures
in 1998 and 1999. AJ's Decision at 14. We find that the agency met
its burden of production and articulated legitimate, nondiscriminatory
reasons for the actions alleged by complainant.
The ultimate burden of persuasion now returns to complainant to
demonstrate pretext. In response, complainant argued that the agency
retaliated against her for requesting a formal hearing by issuing her the
proposed removal; however, she presented no probative evidence in support
of her arguments. We find that agency management, through the IPD and the
Assistant Port Director, acted within its authority to relieve complainant
from her supervisory duties and relieve her of her weapon and badge in
2002 and 2003 pursuant to the pending audit and investigation by the IA.
We further find that there are no grounds, other than complainant's
testimony, to find that she was not given a cash award5 or issued the
proposed removal based on her race or sex or in retaliation for her
prior EEO activity in the instant case. In so finding, we note that
while complainant filed her initial complaint of discrimination in the
instant matter in March of 2003, she was not issued the proposed removal
until April 16, 2004. In addition, we note that complainant was issued
the proposed removal for her actions in 1998 and 1999, and not for the
allegations against her regarding the facility's purchase card program.
For the above reasons, and after a review of the record in its entirety,
including consideration of all statements submitted on appeal, it is the
decision of the Commission to affirm the agency's final order, because
the AJ's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
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
__11-13-06________________
Date
1 Due to a new data system, your case has been redesignated with the
above-referenced appeal number.
2 The hearing transcript indicates that the Administrative Judge heard
testimony at the hearing regarding complainant's allegation that she
was issued the notice of proposed removal in April of 2004.
3 The record indicates that complainant was not performing supervisory
duties as she was under investigation and was thus on administrative
duties.
4 Merely because a party objected to a hearing or testimony by telephone
is not necessarily dispositive. See Louthen v. United States Postal
Service, supra.
5 We find the evidence supports the AJ's finding that complainant was
not given a cash award as she was not performing supervisory duties at
that time. IF at Exhibits 4, 5.
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0120054530
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120054530