Nancy Parlato, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, (U.S. Customs Service) Agency.

Equal Employment Opportunity CommissionSep 12, 2002
07A10100 (E.E.O.C. Sep. 12, 2002)

07A10100

09-12-2002

Nancy Parlato, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (U.S. Customs Service) Agency.


Nancy Parlato v. Department of the Treasury

07A10100

September 12, 2002

.

Nancy Parlato,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

(U.S. Customs Service)

Agency.

Appeal No. 07A10100

Agency No. 94-0202

Hearing No. 340-96-3726X

DECISION

Following its December 28, 1999 final order, the agency filed a timely

appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405.

On appeal, the agency requests that the Commission affirm its final

order declining to fully implement an EEOC Administrative Judge's (AJ)

finding that the agency discriminated against complainant based on her sex

(female) and reprisal (prior EEO activity). For the following reasons,

the Commission REVERSES the agency's final order.

BACKGROUND

Complainant, a Supervisory Customs Inspector employed at the agency's

San Ysidro Port of Entry, San Ysidro, California, filed a formal EEO

complaint with the agency on July 11, 1994, alleging that the agency had

discriminated against her on the bases of sex and reprisal for prior

EEO activity when she was disciplined in April, 1994 for discourteous

and unbusinesslike conduct.

At the conclusion of the investigation, complainant was provided a copy

of the investigative report and requested a hearing before an AJ.

Following a hearing, the AJ found that complainant established a

prima facie case of sex discrimination and reprisal. Specifically,

the AJ noted that complainant was disciplined for conduct for which

male counterparts were not similarly disciplined, for discourteous

and unbusinesslike conduct, specifically, using the �f-� word at work,

and for closing down traffic lanes on April 1, 1994. The AJ concluded

that the use of vulgar or �blue� language on the job was commonplace,

and that closure of traffic lanes when traffic was light to minimize

and control port-running was routine. The AJ also concluded that the

agency's managers and supervisors involved in the complainant's reprimand

letter were aware of complainant's protected activity and the proximity

of time between complainant's protected activity and the reprimand letter

gives rise to an inference of impermissible retaliatory animus.

The AJ noted that the agency's position was that complainant engaged

in �unprofessional conduct� from October 20, 1993 through April, 1994

for which she was progressively disciplined. The AJ noted that the

agency's specific allegations of unprofessional conduct in the April

26,1994 Letter of Reprimand Letter were: (a) use of �blue� language

on the job on April 1, 1994; and (b) the decision to shut down traffic

lanes on that date. The AJ concluded that the agency met its burden to

articulate a non-discriminatory reason for its conduct.

The AJ also concluded that complainant sustained her burden of proof to

establish that the agency's stated reasons for its conduct were a pretext

for unlawful sex discrimination and for reprisal because of her ongoing

protected EEO activity. Specifically, the AJ found that the reasons

which management expressed as the motivation for the discipline of the

complainant were demonstrably insubstantial and lacked credibility.

The AJ found that the circumstantial fact that complainant was the sole

female supervisor at her level made her gender salient and prominent

in the eyes of agency managers and supervisors. The AJ found that the

fact that complainant's first-line supervisor in 1994 (S1) continued to

repeat that complainant obtained her promotion by trading sexual favors

for advancement at work, rather than based on the merit of her work, even

after her EEO complaint was filed, was direct evidence of discriminatory

sex based bias by an agency manager.

The AJ found that complainant was singled out on the basis of her status

as a female, and was held to a different set of standards than were

imposed on her male counterparts. The AJ concluded that the agency

failed to follow its own disciplinary procedures and protocol in its

dealings with complainant. For example, she did not receive copies of

reports against her prepared by subordinates, and had no opportunity to

rebut them. Finally, the AJ found that throughout the hearing, agency

managers stated that the reason complainant was reprimanded was that

she was insubordinate, or �out of control.� However, the AJ found that

complainant was never charged with insubordination, when orally counseled,

nor when issued a written reprimand. The AJ further found that the

record did not support a finding of insubordination by complainant.

CONTENTIONS ON APPEAL

Agency's Brief in Support of the Appeal

The agency's final order rejected the AJ's decision. On appeal, the

agency argues that the AJ erred in finding discrimination, noting that

complainant failed to establish a prima facie case of sex discrimination.

Specifically, the agency contends that complainant was not merely

reprimanded for discourteous language, but for her refusal to follow

the Branch Chief's instructions in front of her subordinates and her

inability to deal with other employees and peers.

The agency also agrees that the AJ's finding that the �closure of traffic

lanes when traffic was light to minimize and control port running was

routine� supported the establishment of complainant's prima facie case

of gender discrimination. However, the agency contends that this fact is

not relevant to the gender discrimination issue. The agency argues that

complainant was disciplined because she refused to follow her superior's

direction to keep the traffic lanes open. The agency contends that even

if the practice of closing lanes was routine when traffic was light,

complainant still failed to obey her superior's orders. The agency

also contends that members outside of complainant's protected class were

routinely disciplined. The agency contends that the majority of those

who received reprimand letters in the San Diego area have been men.

The agency also contends that S1, whom the AJ found had repeated

a statement that complainant obtained her promotion by trading sexual

favors for advancement at work, was not involved in the decision to issue

the reprimand letter. The agency argues that management was concerned

about the possible perception of bias or reprisal.

The agency further contends that the AJ found pretext because the agency

did not follow its own disciplinary procedures when complainant did not

receive copies of the incident reports prepared by her subordinates,

and did not have an opportunity to rebut them. The agency argues that

the record does not support this conclusion. The Branch Chief (who

normally handled disciplinary and employee matters) testified that he

does not usually provide the subject of the inquiry with the reports

from those who are complaining.

The agency contends that complainant did engage in prior EEO activity

in 1992, and that her previous complaint involved allegations of sexual

harassment by S1, but management testified that they did not involve S1

in any decision to discipline complainant because they were concerned

about the perception of reprisal. The Port Director testified that he

was aware of complainant's EEO activity, but he believed her complaint

had been resolved. Also the agency contends that the letter of reprimand

in this case was not issued until April 1994, approximately one year

after complainant filed a claim for breach of a settlement with the

agency's EEO office. The agency contends that the AJ erred in his

finding that complainant received a letter of counseling in November,

1993, for a reprimand which occurred in October 1993, but the formal

discipline was not issued until April, 1994. The agency contends that

the letter of counseling issued in November, 1993, and was based on

conduct which occurred in October, 1993; the letter of reprimand at

issue in this action was based on incidents which occurred in 1994.

The agency further contends that complainant never filed an EEO complaint

concerning the letter of counseling in November 1993.

Complainant's Rebuttal

Complainant contends that she closed the lanes in accordance with

the standard procedures. Complainant contends that supervisors have

the discretion to close lanes according to the flow of traffic and

that closing lanes in light traffic lessens port running incidents.

Complainant also contends that shortly after she closed the lanes, she

spoke to the Branch Chief who agreed with her actions, and that he had

not told her to again open the lanes.

Regarding the agency allegation of complainant's language, complainant

contends that agency managers and supervisors agreed profanity was an

every day occurrence on the job. Complainant also contends that male

supervisors had argued loudly, used strong profane language and threatened

one another without disciplinary action. Complainant contends that the

agency admitted that management had never before disciplined an employee

for describing another employee as an imbecile.

Regarding the agency allegation that complainant failed to follow

established TECS entry look-out procedures, complainant contends that she

never, in fact, failed to follow established procedures, and that there

is a provision for placing TECS look-outs without the permission of the

Office of Enforcement in an emergency situation. Complainant contends

that managers acknowledged this exception. Complainant contends that the

referenced day involved a kidnapping of a child, and that is an emergency.

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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

After a careful review of the record, we discern no basis to disturb

the AJ's finding of discrimination. The findings of fact are

supported by substantial evidence, and the AJ correctly applied the

appropriate regulations, policies, and laws. As the AJ noted, claims

of discrimination alleging disparate treatment are examined under the

tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Under this analytical framework, the complainant

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 reason was a factor in the

adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco

Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the agency must

articulate a legitimate, nondiscriminatory reason for its action(s). Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). After the

agency has offered the reason for its action, the burden returns to the

complainant to demonstrate, by a preponderance of the evidence, that

the agency's reason was pretextual--that is, it was not the true reason,

or the action was influenced by legally impermissible criteria. Burdine,

450 U.S. at 253. However, the ultimate burden of persuading the trier

of fact that the agency intentionally discriminated against complainant

remains at all times with complainant. Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).

Although the agency argues that management established a legitimate

nondiscriminatory reason for its action, the AJ determined that

management's testimony was unsupported and appeared contrived to support

the agency's disciplinary action against complainant. The AJ also

determined that complainant's testimony was consistent with the records,

shift logs, and regular agency practices. Specifically, the AJ found

that complainant decision to close down the lanes is a normal procedure,

and that no employee outside of complainant's protected group had been

reprimanded for closing the lane when the traffic was very light. Also,

the AJ found that the use of profane words such as �f-� was very common

in the workplace and that no employee outside of complainant's protected

group was disciplined for it. Finally the AJ noted that the preponderance

of the evidence reflected that complainant did not engage in the alleged

misconduct that was the basis for the discipline, and that her conduct

was within agency guidelines, and did not warrant discipline.

The record reveals that complainant had met her ultimate burden of proving

that her gender was the basis for the agency's action. Specifically,

complainant shows through her testimony that males are not disciplined

for similar conduct. We noted that the agency failed to rebut or attempt

to rebut by offering evidence that males were disciplined under the

same circumstances. Specifically, we noted that management admitted

that closing lanes is a normal procedures and also admitted that it

never reprimanded any other supervisor for using profanity.

Reprisal

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Furnco Construction Co. v. Waters, 438

U.S. 567, 576 (1978); Hochstadt v. Worcester Foundation for Experimental

Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F. 2d 222

(1st Cir. 1976) (applying McDonnell Douglas to reprisal cases), Shapiro

v. Social Security Administration, EEOC Request No. 05960403 (December

6, 1996). Specifically, in a reprisal claim, and in accordance with

the burdens set forth in McDonnell Douglas, a complainant may establish

a prima facie case of reprisal showing that: (1) he or she engaged in a

protected activity; (2) the agency was aware of the protected activity;

(3) subsequently, he or she was subjected to adverse treatment by the

agency; and (4) a nexus exists between the protected activity and the

adverse treatment. Whitmire v. Department of the Air Force, EEOC Appeal

No. 01A00340 (September 25, 2000). The causal connection 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. Simens v. Department of Justice, EEOC Request No. 05950113

(March 28,1996) (citations omitted).

The evidence supports the AJ's finding of retaliation. The record shows

that complainant filed EEO complaints of harassment. The record also

shows that management was aware of complainant's prior activity. Further,

the record reveals that complainant was reprimanded, after her prior

complaint, for her language and her decision to shut down traffic lanes

on April 1, 1994. Finally, the agency failed to establish a legitimate

non-discriminatory reason for its adverse action. The record reveals that

complainant's decision to shut down traffic lanes was not insubordinate,

and that she followed the ordinary procedures. The record also shows

that no male employees were reprimanded for the use of profane language.

Therefore, after a careful review of the record, including arguments

and evidence not specifically discussed in this decision, the Commission

REVERSES the agency's final order and remands the matter to 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) within thirty (30) calendar days the agency shall remove and expunge

from all agency official personnel files any reference to the discipline

issued against complainant on or about April 24, 1994, and the preceding

Letter of Counseling issued in November, 1993, used as a basis for

issuance of progressive discipline;

(2) within fifteen (15) calendar days, the agency shall rescinded the

discipline issued against complainant in November, 1993 and April, 1994;

(3) Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall give

complainant a notice of her right to submit objective evidence (pursuant

to the guidance given in Carle v. Department of the Navy, EEOC Appeal

No. 01922369 (January 5, 1993)) and request objective evidence from

complainant in support of her request for compensatory damages within

forty-five (45) calendar days of the date complainant receives the

agency's notice. The agency shall provide complainant with sufficient

explanation and specificity to allow her to reasonably respond to the

agency's request. Upon receipt of complainant's submission, the agency

shall conduct a supplemental investigation to determine the amount of

compensatory damages due to complainant, if any, and issue a final agency

decision. The supplemental investigation and final agency decision

shall be completed within 60 days of the date the agency receives

complainant's submission of objective evidence in accordance with 29

C.F.R. 1614.108(f). A copy of the final agency decision and supplemental

investigation must be transmitted to complainant. A copy of the final

agency decision must be submitted to the Compliance Officer, noted below;

(4) shall consider taking disciplinary action against the responsible

official, if still employed, who was identified as being responsible

for the discriminatory decision to retaliate against complainant. If the

agency decides to take disciplinary action, it shall identify the action

taken. If the agency decides not to take disciplinary action, it shall

set forth the reason(s) for its decision not to impose discipline. The

agency shall report its decision to the Compliance Officer, noted below;

(5) award attorney's fees, as described below; and

(6) post the attached notice.

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 verifying

that the corrective action has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at its San Ysidro Port of Entry, San Ysidro,

California facility 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.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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 (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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 12, 2002

__________________

Date