01984466
12-20-2000
Robert Woo, Sr., Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.
Robert Woo, Sr. v. Department of Justice
01984466
December 20, 2000
.
Robert Woo, Sr.,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice,
(Federal Bureau of Investigation),
Agency.
Appeal No. 01984466
Agency No. F-94-4621
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 (Title VII), as
amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
The issue presented herein is whether complainant has proven, by
preponderant evidence, that he was discriminated against on the bases
of national origin (Chinese American) and reprisal (prior EEO activity)
when he was subjected to an agency investigation in April 1994, and
placed on administrative leave in July 1994.
BACKGROUND
Complainant, employed by the agency as a Special Agent at the time of the
alleged discriminatory events, filed a formal complaint on September 13,
1994, in which he alleged what has been identified as issues presented.
The agency accepted the complaint for investigation. At the conclusion
of the investigation, the agency informed complainant of his right to
choose a hearing before an EEOC Administrative Judge or a final agency
decision without a hearing. Complainant chose the latter. Consequently,
the agency issued a decision finding no discrimination. It is from that
decision that complainant appeals.
Information in the file reveals that, in October 1991, complainant
was assigned to an Interstate Transportation of Stolen Property (ITSP)
investigation concerning the theft of mainframe computers. In November
1992, while still acting as the primary undercover investigator in
the above-referenced investigation, complainant was contacted by a
confidential informant who indicated that he knew people who were in
possession of high tech property that had been stolen from a local
electronics company. In support of his information, the informant
provided complainant with a circuit board he had received from the people
who had allegedly obtained it unlawfully from a local manufacturer.
After corroborating with officials from the victim manufacturer that
the product was theirs and had been stolen, complainant presented
an investigative plan to his supervisor. This plan called for the
complainant to purchase, in an undercover capacity, some of the stolen
property as evidence. The supervisor informed complainant that the agency
did not have the money to purchase the stolen property. Complainant then
indicated to his supervisor that the manufacturer might be willing to
supply some of the funds needed for the purchase. Thereafter, complainant
conferred with the manufacturer's officials and they agreed to supply
a certain amount of the funds needed to purchase the stolen property.
With the money supplied by the manufacturer, complainant's informant
purchased a circuit board from the party possessing the stolen product.
The agency determined that the circuit board had been unlawfully
obtained from the electronics company. According to the complainant,
he placed the circuit board in the FBI evidence storage facility.
He also discussed the evidence purchase with his supervisor and told his
supervisor that the manufacturer had provided the funds for the purchase.
Complainant's supervisor did not give him any instructions regarding the
remainder of the manufacturer's funds while it was being held pending
further purchases and additional undercover activity.
The investigation continued but complainant's informant had to
be relocated by the agency, for his protection, due to his role in
another investigation. Because the informant was not readily available,
complainant's investigation slowed and was eventually closed. According
to complainant, on April 28, 1994, he reimbursed the manufacturer
the full amount that had been provided by them in connection with the
investigation.
On April 28, 1994, complainant was informed by two supervisory special
agents that he was the subject of an investigation by the Office of
Professional Responsibility (OPR). The supervisory special agents
informed the complainant that the investigation concerned his use of
the manufacturer's funds for undercover operation activities in the
electronic product theft investigation. Suspecting discrimination,
complainant consulted with an EEO counselor on June 1994. On July 26,
1994, he was placed on administrative leave. On November 12, 1997,
complainant was removed from the FBI because the OPR investigation
concluded that he had converted the manufacturer's funds to his personal
use and had exhibited a �lack of candor� during the investigation.<2>
Complainant believes he was discriminated against when he was denied
funding, and therefore had to seek outside support, in order to execute
his investigative plan. To support this allegation he stated that his
Caucasian counterparts were routinely given funds to carry out their
investigations. He also stated that shortly after he was denied funding,
his supervisor (Caucasian) was given funds to conduct an investigation
in New York. In response, the agency stated that the type of equipment
for which complainant sought funds was very expensive and prohibitive
for the FBI to purchase as evidence; therefore, no funds were available
for evidence purchases. The agency also stated that during the period
in which complainant was denied funding, no proactive cases were pursued
due to limited resources. Complainant's supervisor stated that he did
not provide any special agent with additional resources to pursue their
investigation. Complainant's supervisor admitted that he did receive
funding to travel to New York regarding one of his investigations. But
according to him, that investigation only cost $1,500.00. The Commission
notes that this investigation did not involve the purchase of evidence.
The agency also presented evidence which indicates that other agents
were denied funding for proposed evidence purchases.
ANALYSIS AND FINDINGS
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.
Although the initial inquiry 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, the agency has articulated a legitimate,
nondiscriminatory reason for its actions. Specifically, the agency
stated that complainant was investigated, and subsequently placed on
administrative leave, because of questions regarding his use of funds
that he received from the manufacturer. The agency also stated that of
the six employees that were placed on administrative leave pending an
investigation regarding the illegal use of third party funds, complainant
was the only Asian-American.
Because the agency has proffered a legitimate, nondiscriminatory reason
for the alleged discriminatory events, complainant now bears the burden
of establishing that the agency's stated reason is 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 that
the reason offered by the agency was pretextual, complainant provides
scores of examples of discriminatory events to which he has allegedly
been subjected to in the past. He did not, however, attempt to disprove
(or even deny) the agency's assertion regarding the improper use of the
manufacturer's funds. Instead, he stated that if the agency had not
discriminated against him by denying him the funds necessary to conduct
the investigation, then he would not have had to seek outside funding from
the manufacturer. He also stated that he reimbursed the manufacturer
on April 28, 1994, the same day he learned of the OPR investigation.
We find that the timing of the reimbursement was not coincidental.
For those reasons, we also find that complainant has failed to prove
that the agency's actions were motivated by discriminatory animus.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, 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 20, 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 appealed the removal to the Merit Systems Protection Board.
As such, the removal will not be addressed in this decision.