0320180038
06-13-2018
Ashely S.,1 Petitioner, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ashely S.,1
Petitioner,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Petition No. 0320180038
MSPB No. CH-0752-17-0121-I-2
DECISION
On March 13, 2018, Petitioner filed a timely petition with the Equal Employment Opportunity Commission (EEOC or 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. For the following reasons, we CONCUR with the MSPB's ultimate decision that Petitioner did not establish that she was discriminated against.
BACKGROUND
Petitioner worked as an Administrative Support Assistant, GS-07 at the Agency's facility in Cincinnati, Ohio. Previously, Petitioner had filed two appeals with the MSPB concerning, among other things, an October 24, 2014 removal. Petitioner raised allegations of reprisal based on the Whistleblower Protection Act. On March 3, 2016, an MSPB Administrative Judge issued an initial decision mitigating Petitioner's removal to a three-day suspension, granted her request for corrective action, and ordered interim relief. The Agency filed a petition for review.
On March 14, 2016, the Agency advised Petitioner of the interim relief that would be provided. The Agency agreed to restore Petitioner to her position, but her position was no longer available so she was offered a different position. Petitioner rejected the position because it involved telework and she did not want to participate in the Telework program. Thereafter, she was assigned to a position in what is described as the PTSD clinic. The duties of the position were within her job series. Believing, however, that she was being set up to fail, Petitioner refused to do any work assigned to her except attend training. As a result, the Petitioner was terminated. Petitioner filed another appeal with the MSPB. She again alleged that she was subjected to reprisal because she was a Whistleblower.
A hearing was held and thereafter the MSPB Administrative Judge (AJ) issued an initial decision finding that the Agency's removal of Petitioner was supported by the record. The AJ also found that Petitioner did not establish her affirmative defense that the Agency terminated her because of her prior EEO activity. The AJ found that the Agency terminated Petitioner based on her work performance, i.e., her refusal to perform the duties assigned to her. Moreover, the AJ found that the evidence showed that the official who decided to terminate Petitioner was new to the position and not aware of her prior EEO activity. The AJ also found that Petitioner did not demonstrate that she was subjected to discrimination. Disagreeing with the AJ's decision, Petitioner filed the instant petition.
On appeal, Petitioner contends, among other things, that the newly assigned Director decided to terminate her within the first 45 days that the Director was in office. This was without conducting an investigation about whether the Agency had complied with the MSPB's Order to reinstate her or whether they had involuntarily reassigned her because of her MSBP/EEO activities. Petitioner reiterates that she was reassigned to the position in the PTSD clinic because management knew that she was not qualified for the position and would fail. She further argues that she was placed in this position as retaliation for her MSPB, Union and EEO activities.
Petitioner also expresses her displeasure with the MSPB process.
ANALYSIS AND FINDINGS
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).
At the outset, we note that the Commission has previously held that whistleblower activities are outside the purview of the EEO process. See Giannu v. Department of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Consequently, our decision will focus only on Petitioner's claim that she was subjected to reprisal based on her prior EEO activity.
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 case at hand, we find that assuming arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was terminated because she refused to do the work assigned to her. Accordingly, we find that Petitioner did not demonstrate that the Agency's articulated, nondiscriminatory reason for her removal was pretext for discrimination.
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 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
_6/13/18_________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0320180038
4
0320180038