0320160051
09-16-2016
Amie H.,1 Petitioner, v. Anthony Foxx, Secretary, Department of Transportation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Amie H.,1
Petitioner,
v.
Anthony Foxx,
Secretary,
Department of Transportation,
Agency.
Petition No. 0320160051
MSPB No. DC-0432-13-6500-I-1
DECISION
On June 30, 2016, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, we CONCUR with the MSPB's ultimate determination that Petitioner did not establish he was discriminated against as alleged.
BACKGROUND
Petitioner worked as a Budget Analyst, GS-14 at the Agency's National Highway Traffic and Safety Administration in Washington, DC. Petitioner alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Asian), national origin (Korean), and age (over 40) when she was removed from her position for unacceptable performance. The record showed that after nearly 20 years of Federal service, Petitioner, a GS-13 Budget Analyst applied for a GS-14 Budget Analyst position with the instant Agency. She was selected for the position.
At her mid-year review, her supervisor (S1) expressed concern that Petitioner, after nine months, was still not working at the GS-14 level. Petitioner received an "Achieved Results" for the 2012 rating year. However, during Petitioner's mid-year performance review, on January 8, 2013, S1 informed Petitioner that her performance was unacceptable in three of five critical elements. On January 28, 2013, S1 put Petitioner on a performance improvement plan (PIP). The PIP ended on March 30, 2013. Two months later, on May 23, 2013, S1 proposed Petitioner's removal based on unacceptable performance.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency proved by substantial evidence that it properly removed Petitioner. The AJ also determined that Petitioner did not prove her affirmative defenses. Specifically, Petitioner alleged that the Agency committed harmful procedural error in that management did not scrutinize all of the documentation underlying the notice of proposed removal. The AJ found, however, that management adequately considered such documents.
Further, the AJ found that Petitioner did not demonstrate that she was subjected to a hostile work environment based on her age, race, and national origin. Specifically, Petitioner maintained that she was forced to use annual leave for one day during inclement weather, and she was criticized severely for being late to a PIP meeting and for making errors in the MAX database. Petitioner also maintained that she was repeatedly threatened with demotion and she was treated more harshly than her coworkers. The AJ found that assuming that it had jurisdiction over the hostile work environment claim it would find that Petitioner failed to prove her claim because the record showed that S1 was generally abrasive toward her subordinates. As such, the AJ determined that while S1's manner toward Petitioner might have been overly harsh, it was not based on Petitioner's membership in any protected class as this was the manner in which S1 interacted with all of her subordinates. The AJ also noted that it was S1 who initially selected Petitioner so presumably S1 was aware of Petitioner's age, race, and national origin at the time she selected her.
For Petitioner's affirmative defense of disparate treatment based on her age, race and/or national origin, the AJ applied the analytical framework set forth in the MSPB's decision Savage v. Department of the Army, 122 M.S.P.R. 612. The AJ found that Petitioner did not prove her claim of discrimination based on age, race, and/or national origin. Specifically, the AJ found that the comparators offered by Petitioner, who she claimed were treated more favorably than she was, were not similarly situated to her as they were not the same grade as Petitioner. They were all GS-13s while Petitioner and another employee were GS-14s.
Assuming Petitioner established a prima facie case, the AJ determined that even when considering all of Petitioner's allegations which included: that younger, Caucasian and African-American employees' mistakes were overlooked; that S1 granted deadline extensions to a coworker but not to her; that Petitioner was not personally trained by S1 as other Budget Analyst employees were; that S1 was irritated by the fact that English was Petitioner's second language; that she was denied a within-in grade increase and the opportunity for a detail; and that she was assigned more work than the other Budget Analysts, the record did not indicate that Petitioner's age, race, or national origin, were motivating factors in her removal.
The AJ noted that the comparators offered were not GS-14 Budget Analysts and did not have as many responsibilities as Petitioner and the other GS-14. As such, they were given more leeway than Petitioner. The AJ indicated that Petitioner was not trained by S1 but did have her personal attention during the PIP. Further, there was no evidence that S1 was upset by Petitioner's accent which existed when S1 hired her. The Agency also explained that Petitioner did not receive a WIGI or a detail because she did not have a satisfactory rating. Finally, the AJ noted that Petitioner for a while did receive additional work when an employee left the Agency but the work was subsequently split between Petitioner and the other GS-14.
With regard to the hostile work environment claim, the AJ found that the incidents complained of were work-related matters and not severe or pervasive enough to establish a hostile work environment. Accordingly, the AJ found that Petitioner did not demonstrate that she was subjected to discrimination or a hostile work environment.
Petitioner then filed the instant petition. She asserts, among other things, that the AJ erred by including erroneous findings of material fact in the initial decision, and by disallowing her to present relevant evidence in support of her affirmative defenses. Specifically, she contends that the AJ erred in not finding that she was treated in a discriminatory manner because her performance was on par with the other Budget Analyst.
ANALYSIS AND FINDINGS
Standard of Review
EEOC Regulations provide that the Commission has jurisdiction over mixed case appeals on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. � 1614.303 et seq. The Commission must determine whether the decision of the MSPB with respect to the allegation of discrimination constitutes a correct interpretation of any applicable law, rule, regulation or policy directive, and is supported by the evidence in the record as a whole. 29 C.F.R. � 1614.305(c).
Disparate Treatment
In Petitioner's case, we find that the MSPB AJ erred by not applying the McDonnell Douglas analysis in deciding Petitioner's claim of age, race and/or national origin discrimination when the Agency removed her from her position for unacceptable performance; therefore, we will analyze this case according to the McDonnell Douglas paradigm. We find, however, that the MSPB AJ correctly determined that Petitioner did not establish that the Agency discriminated against her, as alleged.
Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Petitioner to prevail, she 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 Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Petitioner has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Petitioner 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, Petitioner retains the burden of persuasion, and it is 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).
In the instant case, we find that Petitioner failed to demonstrate that she was subjected to discrimination on the bases of age, race, and/or national origin when she was terminated from her position. Even if we assume arguendo that Petitioner established a prima facie case of discrimination as to all bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely that Petitioner was terminated from her position because she did not successfully perform at the GS-14 Budget Analyst position.
On appeal, Petitioner maintained that other employees were treated more favorably, that she was not granted a WIGI or a detail, and that she had more work than the other Budget Analyst. We find that the Agency successfully showed that Petitioner was not similarly situated to the other Budget Analysts as they were GS-13 employees. The record showed that Petitioner and the other GS-14 Budget Analyst had more work, more responsibility, and were held to a hirer standard than the GS-13s. Further, Petitioner was not granted a WIGI or detail because she was not successfully performing her current position. Accordingly, we find that Petitioner has not shown that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination or that discriminatory animus was involved in the decision to terminate her employment.
With respect to Petitioner's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Petitioner's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Petitioner failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, the Commission agrees with the MSPB's ultimate determination that Petitioner did not establish that the decision to remove her was based on her age, race and/or national origin.
CONCLUSION
Based upon a thorough review of the record, it is the decision of the Commission to CONCUR with the final decision of the MSPB finding no unlawful discrimination. For the reasons set forth herein, we conclude that the evidence in the record as a whole supports the MSPB's finding that Petitioner did not establish the affirmative defense of unlawful discrimination.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/16/16________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
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