0320150051
02-03-2016
Audrea L.,1 Petitioner, v. Jacob J. Lew, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Audrea L.,1
Petitioner,
v.
Jacob J. Lew,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Petition No. 0320150051
MSPB No. CH-0752-13-0289-I-1
DECISION
On March 30, 2015, 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. For the reasons stated below, the Commission concurs with the MSPB's decision.
BACKGROUND
Petitioner worked as a Revenue Agent at the Agency's Internal Revenue Service facility in Green Bay, Wisconsin. The Agency suspended Petitioner for 15-days based on the following three charges: (1) making false statements in matters of official interest (22 specifications); (2) misuse of government property (22 specifications); and (3) inappropriately disclosing taxpayer information to coworkers (1 specification). The first two charges were based on Petitioner's conduct over an approximately 1-year time period during which she allegedly used her government-owned computer during work hours for nonwork-related activity and failed to properly account for these nonwork time periods on her Examiner's Time Input Documents (EITD). The third charge was based on an incident where Petitioner allegedly disclosed taxpayer information to two coworkers who did not have a need to know such information.
Petitioner disputed all three charges and the reasonableness of her 15-day suspension. She also raised the affirmative defenses of retaliation for protected equal employment opportunity (EEO) activity and harmful procedural error.
A hearing was held and thereafter an MSPB Administrative Judge (AJ) issued an initial decision finding that Petitioner did not establish that she was subjected to reprisal for prior protected EEO activity when she was issued a 15-day suspension. Specifically, the AJ sustained all three charges, found a nexus between the sustained misconduct and the efficiency of the service, and determined that the penalty was within the bounds of reasonableness. Additionally, she found that Petitioner failed to prove her affirmative defenses. Petitioner sought review by the full Board. Petitioner reasserted her claim that she was subjected to reprisal. The Petitioner maintained that after she initiated EEO activity her supervisor reported her non-work activity for investigation, placed her on a PIP, and made comments about her EEO activity. The Board found that it was the supervisor's job to report possible, fraud, abuse, and waste, Petitioner did not show that the PIP was related in any way to the suspension, and it was determined that the comments made by Petitioner's supervisor's involved him saying that he almost stepped down from his position because he did not feel supported by management. Petitioner also maintained that she was subjected to reprisal because her suspension was increased from a proposed five days to thirty days. The Board found however, that the 30-day recommendation was not made by her supervisor but was made by Labor Relations and General Legal Services based on the claims issued against her.
Finally, Petitioner alleged that the deciding official had retaliatory intent because she was involved in the "unsuccessful" mediation of Petitioner's 2007 EEO complaint. The AJ found that the deciding official credibly testified that Petitioner's prior EEO complaint had no influence on her decision to suspend Petitioner for 15-days. The Board found that Petitioner provided no evidence which demonstrated that she was subjected to reprisal. For these reasons, the Board found that Petitioner did not provide a reason to disturb the AJ's finding that she failed to prove her affirmative defense of retaliation based on her prior EEO activities. Petitioner then filed the instant petition.
On appeal, Petitioner, among other things, asserts that the accusations against her are due to retaliation based on her prior EEO activity. Petitioner explains that she filed an EEO complaint in December 2007, and thereafter her supervisor began retaliating against her. She maintains that one evening he saw her get something from the printer that he believed to be personal and instead of talking to her about the situation he initiated an investigation maintaining that she had violated the personal computer use policy. Petitioner argues that this one-time event was not a violation of the policy. She points out that the investigation regarding this matter was not initiated until 11 months after the incident. Petitioner also indicates that after her mother was diagnosed with a fatal illness and she was suffering extreme emotional stress, her supervisor placed her on a PIP which was the first time in her career that she had had a problem. Petitioner also maintains that it was common practice in her office to discuss customers and businesses so she was surprised that she was accused of doing this. Petitioner explains that she was actually not criticizing a customer but was pointing out the poor work of another employee. Finally, Petitioner maintains that her supervisor openly expressed his disdain for her in during the investigation indicating that she was a troublemaker and liked to argue and win arguments. He also testified that he was upset that the mediation regarding the 2007 EEO complaint almost fell through and that he did not feel supported by management. He thought that management had given Petitioner authority to act in any manner and that he considered stepping down from his position because he did not feel supported.
In response, the Agency maintains that Petitioner has not provided any evidence which demonstrates that reprisal was the bases for the Agency's actions. The Agency points out that while her supervisor might have initiated the actions in this claim, the decision to take action against her was made by others who were not involved with her prior EEO activity. The Agency also requests that Petitioner's supplemental information, which consists of emails, and Agency policy documentation, not be considered as they were available at the time of the hearing but where not submitted.
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).
In the instant case, we concur with the MSPB's decision that Petitioner did not demonstrate that she was subjected to reprisal. We find that even if we assume arguendo that Petitioner established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Petitioner was issued a suspension because it was found that she violated Agency policies. While it is clear that Petitioner and her supervisor had a contentious relationship, that he appeared to be less than sympathetic regarding Petitioner's mother illness, and expressed his disdain for the EEO process, we find no persuasive evidence that demonstrated that his actions in the instant case were motivated by discriminatory animus. In fact, the record reveals that the investigation and the subsequent actions taken against Petitioner were done by Agency employees not involved with her prior protected activity.2 We find that other than Petitioner's conclusory statements that the Agency's actions most have been the result of retaliation, Petitioner has not provided evidence that demonstrates that this was the case. Accordingly, we find that Petitioner has not shown that the Agency's actions were 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. The Commission finds that the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole.
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 en's signature
Carlton M. Hadden, Director
Office of Federal Operations
__2/3/16________________
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.
2 Because we find no persuasive evidence of a discriminatory motivation by the supervisor, we do not believe that application of the "cat's paw theory" is appropriate.
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