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