0120083161
08-25-2010
Bridget L. Gardner, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Bridget L. Gardner,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120083161
Agency No. HS-07-FEMA-001504
DECISION
On July 11, 2008, Complainant filed an appeal from the Agency's May 27, 2008, final decision 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 Commission accepts this appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether Complainant was discriminated against based on her race and sexual orientation1 when, as a result of her background check, it was determined that she was not suitable for federal employment and was thereafter released from employment and denied leave donations.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Disaster Temporary Employee/Human Services Specialist in the Agency's Federal Emergency Management Agency (FEMA) facility, Applicant Services Division, National Processing Servicing Center, located in Denton, Texas. During the time in question, the Office of Personnel Management (OPM) was tasked with conducting background investigations of FEMA employees to determine their suitability for government employment. Initial Adjudicators (IA) at FEMA were assigned to review the results of the investigations and make preliminary determinations regarding suitability for employment. If a file contained adverse information, the IA would issue an interrogatory which provided the individual with an opportunity to explain the adverse information. Complainant's investigation was completed on January 20, 2005. The results of the investigation were not immediately shared because the initial IA assigned to Complainant's case left the agency in August 2005.
The results of Complainant's investigation were not reviewed until 18 months after her investigation was completed. On or about March 15, 2006, acting on instructions from the Supervisory Program Analyst (SPA), Complainant was placed on release status and was provided with interrogatories regarding issues raised in her background investigation. Complainant was not allowed to come to work or to receive back pay or leave status pending the results of her suitability determination. On September 11, 2006, Complainant was issued a Notice of Intent to Terminate after it was decided that Complainant was unsuitable for government employment. The Final Decision-Termination of Employment was issued on January 4, 2007.
Meanwhile, on March 1, 2006, Complainant was approved for the Voluntary Leave Transfer Program. She received one donation of eight hours of leave prior to her release but was not allowed to use it.
On June 15, 2006, Complainant filed the instant EEO complaint alleging that the Agency discriminated against her on the basis of race (African American) and sexual orientation (Lesbian) when:
1. on March 16, 2006, she was released from employment pending a decision from Headquarters regarding her suitability for employment based on charges regarding closed misdemeanor cases and other information in her background check, while similarly-situated employees with open felony cases, wearing ankle monitors, or with restricted driving privileges because of drunken driving arrests were not released; and
2. on March 9, 2006, she was placed on the leave recipient list, but after she was released without pay or leave status, she was denied leave donations that had been granted to her.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The final agency decision (FAD) explained that Complainant was released from employment because of negative information in her background investigation. Specifically, the FAD found that Complainant's background investigation revealed criminal activity within the last three years for which Complainant was currently on probation. The investigation also revealed significant debt and suspect financial information. The FAD acknowledged that Complainant had noted these issues on her application but failed to reveal that she was on three years of supervised probation as of October 26, 2004, and had to report to her probation officer weekly or as directed.
A Personnel Security Specialist (PSS) for the agency explained that employees on current probation were unsuitable for Federal service unless there were mitigating circumstances. The PSS indicated that when the agency looks at debt, the initial cut-off for suitability in disaster positions was $5,000 but Complainant had $20,000 in debt. Moreover, it was noted that Complainant's prior criminal activity involved forgery and falsification of government forms, and that Complainant's position required her to work with disaster victims' personal information to help them fill out government forms.
To show pretext, Complainant argued that the agency pursued her release only because she was African American and a Lesbian. Complainant indicated that OPM had found her suitable for employment in January 2005, and had laid her off and re-hired her on several occasions. She maintained that the Agency had no reason to re-open her investigative file because her suitability had not changed. Further, Complainant argued that similarly-situated employees outside of her protected classes were not released from employment despite the fact that their background investigations showed criminal activity that included drugs, assault, theft charges, incarceration, and probation. Complainant noted that one of her coworkers wore an ankle monitor to work but was not terminated. Further, Complainant submitted court records of 19 individuals whom she alleged were still working for FEMA despite their criminal backgrounds.
In response, the Agency indicated that the parties who selected Complainant for further investigation were not aware of Complainant's race or sexual orientation as they were located in Washington, D.C. The Agency also noted that the officials at her work location had no control or influence regarding suitability determinations. Further, the Agency explained that Complainant's investigation was not re-opened, but had experienced an 18-month delay for review due to personnel changes and several hurricanes. The Agency also indicated that it was not aware of the issues with the four individuals that Complainant identified but maintained that three of the four were terminated after the information was verified. Further, with respect to the 19 individuals whom Complainant alleged were still working despite their criminal backgrounds, the agency indicated that none of the 19 individuals were similarly situated to Complainant. Specifically, the agency indicated that the information provided by Complainant showed individuals with prior criminal activity (some going back 10 years or more) that had been adjudicated and closed. Further, although several records showed that the individuals in question were placed on probation, there was no evidence that the individuals were employed at Complainant's work location. The agency also indicated that there were no records showing that any of these individuals had any debt. Therefore, the Agency found that Complainant had failed to rebut the Agency's legitimate, non-discriminatory reasons for its actions.
With regard to the denial of Leave Donations, the Agency explained that Complainant could not receive the leave donations that she had been granted because she was on inactive pay status. The SPA indicated that because Complainant was in release/intermittent status, she was not eligible for the Volunteer Leave Program. Further, the Human Resources Professional who was responsible for processing the Volunteer Leave Program maintained that she was not aware of Complainant's race and sexual orientation.
To show pretext, Complainant maintained that the eight hours of leave that she received prior to her being released should have been processed. The agency explained that due to Hurricane Katrina, it was running approximately two pay periods behind schedule in processing the leave donations, and the March 14, 2006, eight hour donation that Complainant received was forwarded to be processed for Pay Period 7, April 12 -15, 2006. The Agency indicated that although Complainant was eligible for the leave donation at the time it was made, by the time that it was processed, Complainant was on release/inactive status and the Time and Attendance System would not process the donation.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that additional material/evidence was added to the investigative file after it was completed. She maintains that this was done after she was told that no additional information could be provided to the file. Complainant also contends that she had been previously cleared to work for the agency so she does not understand why she was thereafter subjected to a background investigation by OPM. Moreover, Complainant contends that there were other employees that she worked with who also had criminal records and who were also on parole. She contends that she should have been allowed to continue working pending the results of her interrogatories but was not. Complainant maintains that she was treated differently than her co-workers.
The agency did not submit a brief in response.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For complainant to prevail, s/he 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 consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). Once complainant has established a prima facie case, the burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency is successful, the burden reverts back to the complainant to demonstrate by a preponderance of the evidence that the agency's reason(s) for its action was a pretext for discrimination. At all times, complainant retains the burden of persuasion, and it is his/her obligation to show by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).
Based on the evidence presented, we find that Complainant has failed to prove that she was discriminated against. Specifically, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that FEMA employees were subjected to a background investigation and information was found in Complainant's investigation which warranted an additional investigation. Complainant was thereafter placed in inactive status from service pending an eligibility determination. The investigation found that Complainant had a criminal history involving forgery and falsification of government forms, that she was currently on probation, and that she had a large amount of debt. Based on these findings, Complainant was found to be ineligible for government service and was removed from the agency.
During the processing of her complaint as well as on appeal, Complainant argued that the Agency's explanation for her removal was pretext for discrimination because four of her immediate coworkers, and 19 other agency employees, had criminal histories but continued to be employed by the agency. The Commission finds that the Agency properly explained why this discrepancy was allowed. With respect to Complainant's immediate coworkers, the Agency explained that it was not aware of the employees' criminal histories and that as soon as the information was verified, three of the four employees were also removed from the agency. With respect to the 19 other agency employees that Complainant identified, we find the Agency correctly identified them as not being similarly situated to Complainant, as no evidence was introduced that suggested that they had committed the same offense or had the same debt related problem. We find that Complainant has not shown that the agency's reasons for removing her from government service were pretext for discrimination.
Finally, with respect to the voluntary leave hours, the Commission finds that Complainant failed to show that she was not granted these hours due to discriminatory reasons. We note that the Agency explained that due to Hurricane Katrina they were two weeks behind in processing information and by the time they got to Complainant's information she was on inactive status and the hours could not be processed. The Commission finds however, that no evidence was presented which remotely suggests that this action was done because of Complainant's protected basis. Further, with respect to Complainant's contention that information was added to the file post investigation, we note that Complainant has not identified any information material to the outcome of her complaint that was not properly made a part of the record.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby AFFIRM the Agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 25, 2010
Date
1 We note that the statutes over which the Commission has jurisdiction do not include sexual orientation as a prohibited basis of discrimination.
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0120083161
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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